THE DEPARTMENT OF DEFENSE OF THE UNITED STATES OF AMERICA; THE OFFICE OF THE SECRETARY OF THE DEPARTMENT OF THE AIR FORCE OF THE UNITED STATES OF AMERICA; THE OFFICE OF THE PRESIDENT THRU THE INCUMBENT EXECUTIVE SECRETARY; THE DEPARTMENT OF NATIONAL DEFENSE (DND) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE DEPARTMENT OF FOREIGN AFFAIRS (DFA) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE DEPARTMENT OF HEALTH (DOH) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE DEPARTMENT OF SOCIAL WORKS AND WELFARE DEVELOPMENT (DSWD) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE NATIONAL DISASTER COORDINATING COUNCIL (NDCC) AS REPRESENTED BY THE DND SECRETARY; THE MOUNT PINATUBO COMMISSION (MPC); AND

THE BASES CONVERSION DEVELOPMENT AUTHORITY (BCDA).

DEFENDANTS.

x————————————–x

C O M P L A I N T

PLAINTIFFS, by undersigned counsel and unto this Honorable Court, most respectfully allege that:

PREFATORY STATEMENT

This is the story of a people’s quest for justice against a superpower which once ruled their lives as a colonial sovereign and used their territory to advance the superpower’s military supremacy in Asia and in the world.

This is also the tale of their fight for justice against their own government which, by the manner it tolerated the superpower’s abusive deeds in the use of their territory, almost permitted the commission of such abusive acts.

In particular, this is the story of the plaintiffs as human victims of toxic waste contamination in the former Clark Air Base and Subic Naval Base.

But in general, this is also the story of the Filipino people, both present and future generations, whose environment, heavily damaged by the United States of America after almost a century of occupation and use, is the bigger victim. The damage to the environment in Clark and Subic will ever remain present, even for many long years to come, unless cleaned up, the cost of which has been estimated to reach “superfund” proportions reaching billions of U.S. dollars.

Essentially therefore, this is the Filipino people’s quest for justice for their environment, against the United States, undoubtedly a superpower, who occupied and used Clark and Subic for almost a century, as a colonial sovereign for the first 48 years and as a privileged tenant for the next 46 years.

A privileged tenant because it drafted by itself the terms and conditions of the 1947 Military Bases Agreement (MBA) and merely required the 8-month old Philippine government to sign and accept said agreement in March 1946.

A privileged tenant indeed because, strictly speaking under the 1947 MBA as amended, the US was not even required to pay any rental obligations to the Philippines for its occupation and use of Clark and Subic.

But more than all this, it was privileged because its landlord, the Philippine government, by gross negligence or sheer cowardice, did not assert its right and duty under the Constitution and pertinent laws to protect and preserve its environment and people from harm and degradation.

The people’s quest for justice began when, shortly after the US Air Force withdrew from Clark in November 1991, around 20,000 Filipino families rendered homeless by Mt. Pinatubo eruption were relocated by the Philippine government in Cabcom (Clark Air Base Command), a portion inside the former air base designated by the Philippine government as temporary evacuation center for all Mt. Pinatubo victims.

While these Mt. Pinatubo victims were in Cabcom, they were given and permitted by the Philippine government to install more than 200 pump wells. From these pump wells, the victims drew their daily water needs for drinking, cooking, milkmixing, bathing, laundry and other similar needs.

Initially, they complained of the odd odor, color and taste of the water drawn. Soon members of their families complained of severe stomach pains, irregular bowel movements, headaches, dizziness and other minor health complaints.

Later however, some of them acquired various skin disorders, while others had grown large cysts or masses in various body parts. Pregnant women suffered spontaneous abortions, still births, fetal deaths and birth defects or congenital deformities. Deaths due to leukemia, heart ailment, kidney disorder, lung problem, among others, began to surface in alarming numbers.

These deaths and illnesses brought to the fore the issue of toxic waste contamination not only in Clark Air Base but also in Subic Naval Base. As these deaths and illnesses got reported in national and international news, several studies and investigations were conducted in the areas by different groups.

All these studies and investigations were uniform in their discovery – that there are toxic chemicals and hazardous wastes found in both Clark and Subic. Some of these studies even identified certain specific areas as positively contaminated. Others vary only in their findings on the levels or degrees of toxins present.

Hence, whether or not there are toxins or contaminants in Clark and Subic is no longer an issue. The question only is the extent of the contamination, or put another way, the extent of the environmental damage.

But the much bigger question to ask is -– Did the U.S. Navy and Air Force have knowledge of the toxic waste contamination?

An overwhelming set of evidence, as well as an overwhelming dose of common sense, affirms that they do. A group of former employees at Clark and Subic, who are living witnesses to the actual handling and disposition of toxic chemicals and wastes in the former military bases, are willing to testify on this. Also, as contained in several available documents, a number of U.S. Air Force and Navy officials had admitted that practically all the lakes and rivers in the former bases, including the nearby bay areas, became their dumping sites for the wastes and chemicals they used in their operations.

It appears that for all those years that they were in the country, the US Navy and Air Force showed neither care nor concern on those portions of the Philippine environment they occupied and used. For according to them, under the 1947 Military Bases Agreement as amended, they have no legal obligation anyway to restore those portions of the Philippine environment to their condition prior to their occupation.

With that belief, aggravated by Philippine government’s gross negligence and failure to assert its right and duty to protect and preserve its environment, the US Navy and Air Force showed no serious effort to comply with the pertinent U.S. or Philippine environmental laws. They claimed that U.S. environmental laws are not applicable to overseas facilities like Clark and Subic. As to Philippine environmental laws, they maintained that the country had no environmental laws they could follow at that time. Which is the same to say that Philippine had no environmental laws in place until November 1992 when they — U.S. Navy — pulled out from Subic.

Thus, unlike in many countries like Germany and Italy, they did not set up a comprehensive program on toxic waste treatment and management in Clark and Subic. In particular, they did not install toxic waste treatment facilities and equipment that would have contained, lessened or prevented the toxic waste contamination in the former bases, but which would have required them tremendous amounts of money.

So for almost a hundred years, according to former base employees, the Americans merely dumped and disposed their daily load of solid toxic wastes and chemicals in a manner they saw convenient and inexpensive – in open landfills and shallow ground pits.

For almost a hundred years, they merely dumped and disposed their untreated liquid toxic wastes and chemicals in a manner they deemed convenient and inexpensive – i.e., directly into the lakes and rivers inside and nearby the bases, as well as into the bay areas adjacent to or near these bases.

For almost a century therefore, Clark and Subic, each of which is almost the size of the island of Singapore, became open dump sites for the toxic wastes and hazardous chemicals generated and used by U.S. Navy and Air Force not only in the Philippines but also in its wars in Vietnam and Korea.

And when they left the country in November 1992, after the Philippine Senate rejected the Treaty which would have extended the bases for ten more years, the U.S. Navy and Air Force merely dumped and abandoned their toxic wastes and hazardous chemicals in Clark and Subic in a manner that was manifestly reckless and with almost wanton disregard of Philippine environment.

Initially, when the numerous deaths and illnesses suffered by Cabcom residents came out in the national and international news reports, both the U.S. and Philippine governments chose to be silent on the issue.

Later on however, on several occasions, the US government, short of admitting responsibility and liability for the toxic waste contamination, made pronouncements that it will assist in the clean up of its former military bases. To date, however, it has not done anything concrete towards that direction.

The Philippine government, on the other hand, has already admitted in public last 3 July 2000, thru the Philippine Task Force for Toxic and Hazardous Wastes being chaired by Foreign Affairs Secretary Domingo Siazon, that certain sites in Clark and Subic are positively contaminated by toxic wastes and hazardous chemicals.

Notwithstanding all this however, when the victims demanded for the clean up of the former bases and the compensation for their deaths and illnesses, both the US and Philippine governments refused and denied liability therefor.

The U.S. government took the position that, under the 1947 MBA as amended, it has no legal obligation to restore those portions of the Philippine environment covered by Clark and Subic into their conditions prior to the occupation of the U.S. Air Force and Navy. It also maintained that, under the same 1947 MBA, the Philippine government has waived its claim for compensation or damages in exchange for the existing structures the U.S. Air Force and Navy left in Clark and Subic.

On its part, the Philippine government has placed itself in an awkward position in defense of the US government, claiming that Philippine courts have no jurisdiction over the US government.

In the meantime, not one of these two governments has shown any care or concern for the plight and condition of the human victims. Neither has extended any medical assistance or other forms of assistance to them. Neither of them has made any concrete moves to clean up the former military bases.

Hence, the Filipino people’s quest for justice remains.

THE PARTIES

1. Plaintiff VIRGINIA GUEVARRA is the mother of JACKLYN GUEVARRA who died while suffering from Cerebral Palsy. She is a Filipino, of legal age with residence at Blk. 24 Verbana St., Gordon Heights, Olongapo City.

2. Plaintiff ROMAR DEVILLENA is a minor suffering from leukemia. She is represented in this suit by his father RONALD DEVILLENA, Filipino, of legal age with residence at Blk. 24 Gordon Heights, Olongapo City.

4. Plaintiffs MICAH MESIANO, 2 years old suffering from cerebral palsy, and LAARNI MESIANO, 12 years old suffering from lung ailment, are the daughters of WILFREDO MESIANO, of legal age, Filipino, with residence at 62 Gil St., New Banicain, Olongapo City.

7. Plaintiff TEOFILO ROBERTO JR. is of legal age but suffering from down syndrome. He is represented in this suit by his father TEOFILO ROBERTO SR., of legal age, Filipino, with residence at 34 Gordon St., New Banicain, Olongapo City.

10. Plaintiff JASPER DOMINGO is suffering from cerebral palsy. He is represented in this suit by his mother ELENA DOMINGO, of legal age, Filipino, with residence at 34 Gordon St., New Banicain, Olongapo City.

11. Plaintiff ROCELLE AGUINALDO is a minor suffering from cerebral palsy. She is represented in this suit by her father ROMULO AGUINALDO, of legal age, Filipino, with residence at 1505 Julo Tabacuhan, Purok 6-C, Sta. Rita, Olongapo City.

17. Plaintiffs JEVITA ROSE BORRE and JESSICA BORRE are minors. They are represented in this suit by their father JEVIR BORRE is of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

21. Plaintiff JEROME DIONISION is a minor suffering from hydrocephalus. He is represented in this suit by his mother JULIET DIONISIO, of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

23. Plaintiff ALBERT DOMDOM is a minor suffering from skin disorder. He is represented in this suit by his mother CONNIE DOMDOM, of legal age, Filipino, with residence at Purok 3, New Cabalan, Olongapo City.

24. Plaintiff NEIL DOMDOM is of legal age but suffering mental retardation. He is represented in this suit by his mother CONNIE DOMDOM, of legal age, Filipino, with residence at Purok 3, New Cabalan, Olongapo City.

26. Plaintiff MARICAR LUSONG is a minor suffering from congenital heart disease. She is represented in this suit by her mother CAROLINA LUSONG, of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

29. Plaintiff RAMIL MAMARIL is a minor suffering from skin disease. He is represented in this suit by his mother LORENA MAMARIL, of legal age, Filipino, with residence at Purok 1, New Cabalan, Olongapo City.

30. Plaintiff JAQUELYN TUBIG is a minor suffering from leukemia. She is represented in this suit by her father POLICARPIO TUBIG, of legal age, Filipino, with residence at Purok 1, New Cabalan, Olongapo City.

31. Plaintiff TERESITA DE DIOS TUBIGAN is of legal age, Filipino, with residence at Purok 3, New Cabalan, Olongapo City.

32. Plaintiff MANUEL LUIS ROMERO is a minor suffering from epilepsy. He is represented in this suit by his grandmother ANITA ARIZO, of legal age, Filipino, with residence at Purok 1, New Cabalan, Olongapo City.

33. All the above plaintiffs may be served with notices and other processes of this Honorable Court at the address of the undersigned counsel as indicated hereunder.

34. Defendant Department of Defense of the United States of America is an agency of the Government of United States of America. It may be served a copy of this complaint, summons, notices and other court processes through the U.S. Embassy in the country located at Roxas Blvd., Manila, Philippines, represented in this suit by its incumbent U.S. Ambassador to the Philippines.

35. Defendant Department of the Navy of the United States of America is an agency of the Government of the United States of America. It may be served a copy of this complaint, summons, notices and other court processes through the U.S. Embassy in the country located at Roxas Blvd., Manila, Philippines, represented in this suit by its incumbent U.S. Ambassador to the Philippines.

36. Defendant Office of the President of the Philippines, through the Office of the Executive Secretary in Malacanang, Manila, is an agency of the Republic of the Philippines. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

37. Defendant Department of the Health (“DOH” for brevity) is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

38. Defendant Department of Environment and Natural Resources (“DENR” for brevity) is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

39. Defendant Department of Social Welfare and Development (“DSWD” for brevity) is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

40. Defendant Department of Foreign Affairs (“DFA” for brevity) is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

41. Defendant National Disaster Coordinating Council (NDCC) is an agency of the Government of the Republic of the Philippines under and attached to the Department of National Defense (“DND” for brevity). It is represented in this suit by its incumbent DND Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

42. Defendant Department of National Defense is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

43. Defendant Subic Bay Metropolitan Authority (SBMA) is an agency of the Republic of the Philippines created by an act of Congress. It may be served a copy of this complaint, summons, notices and other court processes in its principal office at SBMA Compound, Olongapo City.

44. Defendant Bases Conversion Development Authority (BCDA) is an agency of the Republic of the Philippines created by an act of Congress. It may be served a copy of this complaint, summons, notices and other court processes in its principal office in Old Golf Club Bldg., Villamor Air Base, Pasay City.

JURISDICTIONAL FACTS

A. SUABILITY OF THE PHILIPPINE GOVERNMENT

45. The Plaintiffs enjoy the fundamental right to a balanced and healthful ecology guaranteed under Section 16, Article II of the Constitution which states:

“SEC. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”

46. In turn, the aforementioned right is inextricably linked with the right of the people to health. Section 15, Article II of the Constitution reads:

“SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.”

47. In the case of Oposa versus Factoran(G.R. No. 101083, July 30, 1993), the Supreme Court expressly ruled that the rights of the Filipino people to a balanced and healthful ecology as well as to health are so basic that these “need not be written in the Constitution for they are assumed to exist from the inception of humankind.”

48. Apart from the inherent duties enshrined in the Constitution, the defendant-Agencies of the Philippine Government have the following responsibilities to the environment and the Filipino people under various domestic laws, to wit:

48.1 Under paragraph (c), Section 1 of Presidential Decree No. 1151 (The Philippine Environmental Policy), it is expressly stated that it is a declared policy of the State to:

“(a) Create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other;

(b) Fulfill the social, economic and other requirements of present and future generations of Filipinos; and

(c) Insure the attainment of an environment quality that is conducive to a life of dignity and well-being.”

48.1.1 In the same law, the Government “recognizes the right of the people to a healthy environment (Section 3, PD No. 1151).”

48.1.2 Pursuant to the foregoing, Section 2 of PD No.1151 expressly states that:

“SEC. 2. Goal—In pursuing this policy, it shall be the responsibility of the Government, in cooperation with concerned private organizations and entities, to use all practicable means, consistent with other essential considerations of national policy, in promoting the general welfare to the end that the Nation may…(b) assure the people of a safe, decent, healthful, productive and aesthetic environment…”

48.2 Under the Philippine Environment Code (Presidential Decree No. 1152), the Government, “through the appropriate agencies”, assumed the following responsibilities:

“CHAPTER II.– Regulation and Enforcement

SEC. 8. Air Quality and Noise Standards.—The National Pollution Control Commission in coordination with appropriate government agencies shall be responsible for the enforcement of ambient air quality emission and noise standards, including the monitoring and surveillance of air pollutants, licensing and permitting of air pollution control facilities, and the promulgation of appropriate rules and regulations….

x x x

SEC. 11. Radioactive Emissions.—The release and emission of radioactivity into the environment incident to the establishment or possession of nuclear energy facilities and radioactive materials, handling, transport, production, storage, use and disposal of radioactive materials shall be regulated by the Philippine Atomic Energy Commission in coordination with other appropriate government agencies.

x x x

CHAPTER II.—Protection and Improvement of Water Quality

SEC. 19. Enforcement and Coordination.—The production, utilization, storage and distribution of hazardous, toxic and other substances such as radioactive materials, heavy metals, pesticides, fertilizers, and oils, and the disposal, discharge and dumping of untreated wastewater, mine tailings and other substances that may pollute any body of water of the Philippines resulting from normal operations of industries, water-borne sources, and other human activities as well as those resulting from accidental spills and discharges shall be regulated by appropriate government agencies pursuant to their respective charters and enabling legislation. In the performance of the above functions, the government agencies concerned shall coordinate with the National Environmental Protection Council and furnish the latter with such information as may be necessary to enable it to attain its objectives under Presidential Decree No. 1121.

Section 20. Cleanup Operations.—It shall be the responsibility of the polluter to contain, remove and clean up water pollution incidents at his own expense. In case of his failure to do so, the government agencies concerned shall undertake containment, removal and cleanup operations and expenses incurred in said operations shall be charged against the persons and/or entities responsible for such pollution….(underscoring supplied).

x x x

TITLE V.—WASTE MANAGEMENT

SEC. 42. Purpose.—The purposes of this Title are:

(a) To set guidelines for waste management with a view to ensuring its effectiveness;

(b) To encourage, promote and stimulate technological, educational, economic and social efforts to prevent environmental damage and unnecessary loss of valuable resources of the nation through recovery, recycling and reuse of wastes and waste products; and

(c) To provide measures to guide and encourage appropriate government agencies in establishing sound, efficient, comprehensive and effective waste management.

CHAPTER I. – Enforcement and Guidelines

SEC. 43.—Waste Management Programs—Preparation and implementation of waste management programs shall be required of all provinces, cities and municipalities. The Department of Local Government and Community Development shall promulgate guidelines for the formulation and establishment of waste management programs.

Every waste management program shall include the following:

x x x

(b) a provision that the operation will not create pollution of any kind or will constitute public nuisance;

x x x

(f) a provision for the periodic revision of the program to insure its effective implementation.”

48.3 Through the Code on Sanitation of the Philippines (Presidential Decree No. 856), the Philippine government expressly declared that the “health of the people is of paramount importance” and all efforts of public services should be directed towards the protection and promotion of such. Accordingly, the Department of Health was vested with the following powers and functions:

“SEC. 3. Functions of the Department of Health.—The Department shall have the following powers and functions:

(a) Undertake the promotion and preservation of the health of the people and raise the health standards of individuals and communities throughout the Philippines;

(b) Extend maximum health services to the people in rural areas and provide medical care to those who cannot afford it by reason of poverty;

(g) Prescribe standard rates of fees for health, medical, laboratory and other public health services; and

(h) Perform such other functions as may be provided by law.”

SEC. 4. Authority of the Secretary.—In addition to the powers and authority of the Secretary (of Health) which are provided by law, he is likewise empowered to promulgate rules and regulations for the proper implementation and enforcement of the provisions of this Code.

x x x

SEC. 8. Miscellaneous Provisions.—

a. International treaties, agreements and conventions.—The Republic of the Philippines recognizes international treaties, agreements and conventions on public health. Their provisions may be considered parts of this Code provided they do not contravene the Constitution, existing laws or any provision of this Code.”

PD 856 likewise states that:

“CHAPTER II.—WATER SUPPLY

SEC. 9. Prescribed Standards and Procedures.—Standards for drinking water and their bacteriological and chemical examination, together with the evaluation of results, shall conform to the criteria set by the National Drinking Water Standards. The treatment of water to render it safe for drinking, and the disinfection of contaminated water sources together with their distribution systems shall be in accordance with procedures prescribed by the Department (of Health).

SEC. 10. Jurisdiction of the Department (of Health).—The approval of the Secretary (of Health) or that of his duly authorized representative is required in the following cases:

a. Sites of water sources before their construction;

b. Delivery of water to consumers from new or recently repaired water systems;

c. Operation of a water system after an order of closure was issued by the Department (of Health);

d. Plans and specifications of water systems of subdivisions and projects prior to the construction of housing units thereat; and

e. Certification of potability of drinking water.”

On the matter of Sewage Collection And Disposal, PD No. 856 provides:

“SEC. 72. Scope of Supervision of the Department (of Health).—The approval of the Secretary or his duly authorized representative is required in the following matters:

x x x

b. Plans of individual sewage disposal system and the subsurface absorption system, or other treatment device;

c. Location of any toilet or sewage disposal system in relation to a source of water supply;

d. Plans, design, data and specifications of a new or existing sewerage system or sewage treatment plan;

SEC. 85. Types of Nuisances.—For the purpose of this Chapter, the following shall be considered nuisances:

a. Public or private premises maintained and used in a manner injurious to health;

x x x”

Relative to the pollution of the environment, PD No. 856 provides thus:

“CHAPTER XX.—POLLUTION OF THE ENVIRONMENT

x x x

SEC. 88. Authority of the Secretary.—The Secretary (of Health) is authorized to promulgate rules and regulations for the control and prevention of the following types of pollution:

a. Pollution of pesticides and heavy metals;

b. Pollution of food caused by chemicals, biological agents, radioactive materials, and excessive or improper use of food additives;

c. Non-ionizing radiation caused by electronic products such as laser beams or microwaves;

d. Noise pollution caused by industry, land and air transport and building construction;

e. Biological pollutants including the causative agents of intestinal infections;

f. Pollution of agricultural products through the use of chemical fertilizers and plant pesticides containing toxic chemical substances and unsanitary agricultural practices; and

g. Any other type of pollution which is not covered by the provisions of Republic Act 3931, the Rules and Regulations of the National Water and Air Pollution Control Commission, the provisions of Presidential Decree 480 and the rules and regulations of the Radiation Health Office of the Department of Health which is likely to affect community health adversely.”

48.4 Under Presidential Decree No. 1586(Establishing An Environmental Impact Statement System, Including Other Environmental Management Related Measures And For Other Purposes), it has been declared the policy of the State “to attain and maintain a rational and orderly balance between socioeconomic growth and environmental protection ( Section 1, PD No. 1586).”

48.4.1 Furthermore, Section 4 of the said law provides:

“SEC. 4. Presidential Proclamation of Environmentally Critical Areas and Projects.—The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation, declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For the proper management ofsaid critical project or area, the President may, by his proclamation, reorganize such government offices, agencies, institutions, corporations or instrumentalities, including the realignment of government personnel; and their specific functions and responsibilities….”

48.5 Likewise, under Presidential Decree No. 1121(Creating The National Environmental Protection Council), a National Environmental Protection Council under the supervision and control of the President of the Philippines was created with, among others, the following responsibility:

“SEC. 3. Powers and Functions of the Council.—

(a) To rationalize the functions of government agencies charged with environmental protection and with the enforcement of environment-related laws to the end that effective, coordinated and integrated systems of environmental protection, research and implementation and enforcement of such laws shall be achieved….”

48.6 The Marine Pollution Decree (Presidential Decree No. 979) declared that it is a national policy “to prevent and control the pollution of seas by the dumping of wastes and other matter which create hazards to human health, harm living resources and marine life, damage amenities, or interfere with the legitimate uses of the sea within the territorial jurisdiction of the Philippines (Section, PD No. 979).”

48.6.1 Section 4 of the said Decree likewise states:

“SEC. 4. Prohibited Acts.—Except in cases of emergency imperiling life or property, or unavoidable accident, collision, or stranding or in any case which constitute danger to human life or property or a real threat to vessels, aircraft, platforms, or other man-made structure, or if dumping appears to be the only way of averting the threat and if there is probability that the damage consequent upon such dumping will be less than would otherwise occur, and except as otherwise permitted by regulations prescribed by the National Pollution Control Commission or the Philippine Coast Guard, it shall be unlawful for any person to:

(a) Discharge, dump or suffer, permit the discharge of oil, noxious gaseous and liquid substances and other harmful substances from or out of any ship, vessel, barge, or any other floating craft, or other man-made structures at sea, by any method, means or manner, into or upon the territorial and inland navigable waters of the Philippines;

(b) Throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged or deposited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into the tributary of any navigable water from which the same shall float or be washed into such navigable water; and

(c) Deposit or cause, suffer or procure to be deposited material of any kind in any place on the bank of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary of high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed or increase the level of pollution of such water.

x x x

SEC. 6. Enforcement and Implementation.—The Philippine Coast Guard shall have the primary responsibility of enforcing the laws, rules and regulations governing marine pollution. However, it shall be the joint responsibility of the Philippine Coast Guard and the National Pollution Control Commission to coordinate and cooperate with each other in the enforcement of the provisions of this Decree and its implementing rules and regulations, and may call upon any other government office, instrumentality or agency to extend every assistance in this respect.”

48.7 Under the Clean Air Act of 1999(Republic Act No. 8749), the Philippine State declared, among others, that (a) it shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature and (b) it recognizes the principle that “polluters must pay.”

48.8 Furthermore, the Philippine State formally recognized the following rights of Filipino citizens and declared that it shall guarantee their enjoyment:

(a) To breathe clean air;

(b) To utilize and enjoy all natural resources according to the principle of sustainable development;

(c) To participate in the formulation, planning, implementation and monitoring of environmental policies and programs in the decision-making process;

(d) To participate in the decision-making process concerning development policies, plans and programs, projects or activities that may have adverse impact on the environment and public health;

(e) To be informed of the nature and extent of the potential hazard of any activity, undertaking or project and to be served timely notice of any significant rise in the level of pollution and the accidental or deliberate release into the atmosphere of harmful or hazardous substances;

(f) Access to public records which a citizen may need to exercise his or her rights effectively under the Act;

(g) To bring action in court or quasi-judicial bodies to enjoin all activities in violation of environmental laws and regulations, to compel the rehabilitation and cleanup of affected area and to seek the imposition of penal sanctions against violators of environmental laws; and

(h) To bring action in court for compensation of personal damages resulting from the adverse environmental and public health impact of a project or activity.

49. In the same manner, the Philippine State has express obligations to the Filipino people and the world community with respect to the protection of the environment under the general principles of international law, to wit:

29.1 The Duty To Avoid Environmental Harm

Under international law, all states, including the Philippines, have the obligation to control sources of harm to others or to the global environment.

Principle 21 of the 1972 Stockholm Declaration On The Human Environment affirms both the sovereign right of states to exploit their own resources “pursuant to their own environmental policies” and their responsibility “to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or to areas beyond the limits of national jurisdiction.” The aforesaid Principle has been regarded by the States present in the Stockholm Conference and by the General Assembly of the United Nations as reflecting customary international law.

Furthermore, the general duty of States not to cause environmental damage to the environment of other states or to areas beyond a state’s national jurisdiction is enshrined in the 1992 United Nations Convention On The Rio Declaration Of Environment and Development (June 15, 1992) which states:

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” (emphasis supplied)

Principle 16 of the Rio Declaration further provides:

“National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.” (emphasis supplied)

As is widely recognized, the responsibility of states not to cause environmental damage precedes the Rio Declaration. There is an obligation of all states to protect the rights of other states as elaborated in the 1941 Trail Smelter decision (3 U.N. Rep. Int’l Arb. Awards 1911) which, among others, states:

“under principles of international law…no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”

The duty to avoid environmental damage has also been accepted in international treaties as well as in other international practices.

Essentially, the foregoing precepts have become part of the generally-accepted principles of international law which, in turn, form part of the law of the Philippines under the incorporation clause of the Constitution.

29.2 Precautionary Principle

The precautionary principle in international law is reflected in Principle Fifteen of the Rio Declaration which states that where there are warnings of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.

The 1985 Vienna Convention For The Protection Of The Ozone Layer is the first treaty to embody the foregoing principle. Subsequently, the precautionary principle for the protection of the environment has been widely addressed.

29.3 The Principle Of Common But Differentiated Responsibility

This principle includes two (2) constituent elements. First is the common responsibility of states for the protection of the global environment, that is, states should participate in the world effort for conservation. This element is embodied in various treaties such as the Convention For The Establishment Of An Inter-American Tropical Tuna Commission (May 31, 1949) and the Treaty On The Exploration and Use of Space (27 January 1967).

On the other hand, the second element of the aforesaid principle recognizes the fact that due to different development paths and the need to share in the responsibility for ecological degradation, some countries may be asked to carry more of the burden of conservation. According to Max Soto (“General Principles Of International Environmental Law” published in the ILSA Journal of International and Comparative Law, Inaugural Bilingual Edition, Vol. 3, No. 1, Fall 1996), the idea is that states should comply with international obligations for the conservation of the environment on the basis of equity and in accordance with their common but differentiated responsibilities and respective capacities.

The aforesaid Principle is acknowledged under Principles Four and Seven of the Rio Declaration.

For violating its own laws, including the aforementioned generally-accepted principles of international law, the Philippine government, through the Defendant-Agencies may be sued directly.

In the cases of Ministerio v. Court of First Instance (G.R. No. L-31635, August 31, 1971) and Amigable v. Cuenca (G.R. No. L-26400 February 29, 1972), the Supreme Court held that where the government itself has violated its own laws, the aggrieved party may directly implead and sue the government.

B. LIABILITY OF THE DEPARTMENTS OF DEFENSE, NAVY AND AIR FORCE OF THE UNITED STATES OF AMERICA

50. It is beyond cavil that a State has responsibility for an act or omission which results in a breach of a legal obligation founded upon a treaty, custom or other such unilateral acts (Ian Brownlie, Principles of Public International Law [ Fifth Ed., 1988, Oxford University Press, Inc., New York]) p. 435.).

51. Necessarily, any State which violates a legal obligation under international law is under an equal obligation to make reparation.

52. In a report on the Spanish Zone of Morocco Claims (Translation; French text, RIAA ii. 615 at 641), Judge Huber said:

“Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparation.”

“It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefor is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.”

54. Focusing further on the issue of reparation, the Permanent Court of Justice declared:

“the essential principle contained in the actual notion of an illegal act…is that the reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or if it is not possible, payment of a sum corresponding to the values which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law (Certain German Interests In Upper Silesia (F.R.G. v. Poland), 1928 P.C.I.J. (Ser. A) No. 17, p. 377).”

55. Lastly, in the Caire claim(1929) RIAA v. 516 at 529-31), Verzijl, the President of the Franco-Mexican Claims Commission stated thus:

“The State also bears an international responsibility for all acts committed by its officials or its organs which are delictual according to international law, regardless of whether the official organ has acted within the limits of his competency or has exceeded those limits…”

56. Where the responsibility of a state is established, an obligation to make reparation arises. The injured state may require the other to:

(a) Discontinue the act;

(b) Apply national legal remedies;

(c) Re-establish the situation existing before the act in question, or to the extent that this is impossible, pay corresponding compensation; and

(d) Provide guarantees against repetition.

57. The specific legal liability of the Defendant agencies of the United States government under international law is defined under Principle 2 of the United Nations Convention in Rio Declaration on Environment and Development (June 1992) which provides:

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” (emphasis supplied)

58. As indicated in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the “Basel Convention”) adopted by the Conference of Plenipotentiaries in 1989, and to which the United States is a signatory, States are responsible for the fulfillment of their international obligations concerning the protection of human health and protection and preservation of the environment, and are liable in accordance with international law.

59. The Preamble of the Basel Convention clearly provides that States should take necessary measures to ensure that the management of hazardous wastes and other wastes, including their transboundary movement and disposal, is consistent with the protection of human health and the environment whatever the place of disposal, and that States should ensure that the generator should carry out duties with regards to the transport and disposal of hazardous wastes and other wastes in a manner that is consistent with the protection of the environment, whatever the place of disposal.

60. The United States is obligated under the Basel Convention to ensure that there will be no dumping of the toxic wastes on the territory of another State like the Philippines without the knowledge and consent of the latter. Clearly, if the transboundary movement of hazardous wastes is expressly proscribed under international law, with more reason should the dumping and unlawful disposal and storage of hazardous wastes by one State, while it is in the territory and is for all purposes a guest of another State, be proscribed and penalized.

61. Furthermore, in light of the foregoing, the breach of a duty under international law by one state which results in loss to another state is actually a tort. This is especially so since a tort always involves a violation of some duty owing to plaintiff, and generally such duty must arise by operation of law and not by mere agreement of the parties (Black’s Law Dictionary, Sixth Edition, 1990). Needless to state, a tort is essentially a legal wrong committed upon the person or property independent of contract. It may be either (1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual (Black’s Law Dictionary, Ibid).

62. Prominent authors in public international law agree that “there is no harm in using the term ‘international tort’ to describe the breach of duty which results in loss to another state (Schwarzenberger, International Law, i. 562, 563, 571, 581; the Union Bridge Company claim (1924), RIAA vi. 138 at 142; and Jenks, The Prospects Of International Adjudication (1964), 514-33).”

63. Among such authors, Ian Brownlie, commenting on the international legal implications of the Corfu Channel Case (ICJ Reports (1949), stated that “the emphasis on the duty to make reparations does present a broad concept akin to civil wrongs in municipal systems (Brownlie, p.438).” Upon the foregoing, States may indeed commit “torts” (“international torts’) and be held liable therefor.

64. Thus, the acts of the United States Government which directly resulted to deaths and injuries to the Plaintiffs in Philippine territory are constitutive of international torts and the former should be held liable.

65. Apart from the foregoing, the Defendants agencies of the United States Government are under an obligation to observe the aforementioned Philippine laws on the environment while within Philippine jurisdiction.

C. SUABILITY OF THE DEPARTMENTS OF DEFENSE, NAVY AND AIR FORCE OF THE UNITED STATES OF AMERICA IN PHILIPPINE COURTS

66. Several general principles of international law permit the filing of the instant suit against the United States of America in Philippine courts, to wit:

[ i ]

THE GOVERNMENT OF THE UNITED STATES OF AMERICA EXPRESSLY ADMITTED ITS CIVIL LIABILITY FOR PERSONAL INJURY OR DEATH OF PHILIPPINE INHABITANTS OCCASIONED BY THE OPERATION OF ITS MILITARY BASES UNDER THE 1947 RP-US MILITARY BASES AGREEMENT

“For the purpose of promoting and maintaining friendly relations by the prompt settlement of meritorious claims, the United States shall pay just and reasonable compensation, when accepted by claimants in ful satisfaction and in final settlement, for claims, including claims of insured by excluding claims of subrogees, on account of damage to or loss destruction of private property, both real and personal, or personal injury or death of inhabitants of the Philippines, when such damage, loss, or individual members thereof including military or civilian employees thereof, or otherwise incident to non-combat activities of such froces; provided that no claim shall be considered unless presented within one year after the occurrence of the accident or incident out of which such claim arises.

68. Such express acknowledgement of civil liability on the part of the United States government constitutes an express waiver of its sovereign immunity from suit.

69. Needless to state, inasmuch as the injuries, death and illnesses, being suffered by the Plaintiffs are still continuing, neither may the United States claim that the right of action of the Plaintiffs has prescribed, assuming without conceding that the limitation under Article XXIII of the 1947 MBA is lawful.

70. Upon such express waiver of sovereign immunity, the United States government may be directly sued to enforce its civil liability which arises not onl;y from law but also upon a contract, that is, the Military Bases Agreement.

[ ii ]

THE ILLEGAL ACTS OF THE UNITED STATES GOVERNMENT ARE CONSTITUTIVE OF INTERNATIONAL TORTS THE LEGAL ACTION FOR WHICH MAY BE INSTITUTED IN THE PHILIPINES.

71. As earlier characterized, the acts of the United States Government, through the Defendant agencies thereof, while within Philippine territory, insofar as these directly caused harm to the Plaintiffs, are constitutive of torts.

72. Such being the case, the following internationally-accepted principles on tort liability should govern the instant action:

a. The Rule of Elective Concurrence

This principle has its origins in the ruling of the German Supreme Court that a tort is committed in both the place where the actor engages in his conduct and the place where the effects of his conduct occur. Thus, the injured person may choose to sue under one law or the other, he can elect the law most advantageous to his demand but he is not permitted to cumulate the benefits flowing from more than one law. This view has been followed by the Swiss Federal Tribunal and, in a case of unfair competition, by the Italian Supreme Court (Jovito Salonga, Private International Law (1995 ed.) p. 391 citing Reichsgericht, No. 20, 1888 and II Rabel, 304-306).”

Since the places of the occurrence of the tortious conduct of the United States Government and the effects thereof are both in the Philippines, the Plaintiffs have every right, under international law, to institute the present suit upon causes of action arising from Philippine and international environmental laws.

b. The “State Of The Most Significant Relationship” Rule

This principle in international law is enshrined in Section 145 of the Second Restatement (Conflict of Laws) of 1969 of the United States which states that the rights and liabilities of the parties with respect to an issue in tort are determined by “the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties

In determining the State which has the most significant relationship, the following contacts are to be taken into account and evaluated according to their relative importance with respect to the particular issue:

(a) The place where the injury occurred;

(b) The place where the conduct causing the injury occurred;

(c) The domicile, residence, nationality, place on incorporation and place of business of the parties; and

(d) The place where the relationship, if any, between the parties is centered (Salonga, Private International Law, ibid).

“Justice, fairness, and the ‘best practical result’ may be best achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation. The merit of such a rule is that ‘it gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation.”

The rationale stated in Babcock finds strong support in the pronouncement of Rabel (II Rabel 252 cited in Salonga, ibid., p. 385):

“The primary object of the law of torts is to regulate the social order and prevent its infringement; the secondary concern is to compensate the victims of violations of this order. The State cannot fulfill this duty without including foreigners in its commands.”

73. On the basis of the aforestated principles in international law, it is the Philippine jurisdiction which has the most significant relationship to the issues raised in this proceeding. Necessarily, the United States of America, as the tortfeasor, may be sued in Philippine courts.

74. Federal laws as well as the decisions of the Supreme Court of the United States expressly admit the suability and liability of the Federal government for torts in accordance with the foregoing principles.

75. Under the Federal Tort Claims Act (28 U.S.C.A. 2674), the general directive is that the government is to be held “in the same manner and to the same extent as a private individual under the circumstances.” The federal courts are directed to follow, not federal law of civil rights or otherwise, but the tort law of the state in which the tort occurred [28 U.S.C.A. 1346 (b)], including its choice of law rules.

76. On the other hand, in Babcock versus Johnson and in many other cases, the Supreme Court of the United States, whose decisions form part of the domestic laws of the said country, finds no legal impediment in the filing of an action for torts in the courts of the state which has the most significant relationship to the place of injury and/or to the plaintiffs.

77. Foregoing considered, there is no legal impediment to the filing of the instant action in Philippine courts.

[ iii ]

THE GOVERNMENT OF THE UNITED STATES OF AMERICA VIOLATED THE INTERNATIONALLY-GUARANTEED RIGHT OF THE PLAINTIFFS TO LIFE FOR WHICH IT MAY BE HELD LIABLE IN PHILIPPINE COURTS.

78. International law recognizes a human right to a decent, viable or healthy environment.

79. Such right stems from the guarantee enshrined in Article 6 (1) of the United Nations International Covenant On Civil and Political Rights which states that “No one shall be arbitrarily deprived of his life.”

80. The foregoing is no “mere guarantee of a meager existence assuming no more than a brutish survival” for it is attested by Principle 1 of the 1972 Stockholm Declaration which reads:

“Man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well being.”

81. Furthermore, such inextirpable relationship between the “right to life” and the “right to a sound environment finds support in the reference to “man’s environment” in the United Nations Stockholm Conference On The Human Environment (UNCHE).

82. The said document refers to “man’s environment” as that “which gives him physical sustenance and affords him the opportunity for intellectual, spiritual, moral, and social growth” and further states that “both aspects of man’s environment, the natural and the man-made, are essential for his well-being and enjoyment of basic human rights.”

83. The European Community’s Action Program On The Environment is more emphatic on the foregoing point as it defines the “environment” as the “combination of elements whose complex inter-relationships make up the settings, the surroundings and the conditions of life of the individual and of society as they are and as they are felt.”

84. Verily, the Plaintiffs, individuals who enjoy the internationally-guaranteed “right to life”, may institute the instant action in view of the Defendants’ violation of the same.

85. The right of a person to assert a claim for compensation for the violation of his/her “right to life” was explicitly recognized in an individual petition (UN HRC, Decision No. 67/1980 v. Canada [1990]) under Article 6 (1) of the 1966 UN Covenant On Civil and Political Rights where it was claimed that the dumping of nuclear wastes in a Canadian town violated the right of its inhabitants and future generations.

86. In the instant case, the wanton and reckless disposal, abandonment and dumping of toxic and hazardous wastes in Philippine territory by the United States Government, which damaged the environment and directly resulted to deaths and injuries to the Plaintiffs, is a grave violation of the internationally-guaranteed “right to life” of the latter.

87. Corollarily, where the cause of action is violation of internationally-protected human rights, there should be an exhaustion of local remedies. Such principle, in turn, mandates that the instant suit which are essentially against the Governments of the United States and the Republic of the Philippines must initially be instituted in Philippine courts.

[ iv ]

THE UNITED STATES GOVERNMENT EXPRESSLY CONSENTS TO THE FILING OF ANY ACTION AGAINST ITSELF FOR THE COMMISSION OF INTERNATIONAL TORTS.

87. The United States expressly consented to a filing of any action for tort against it with the enactment of the Federal Tort Claims Act (28 U.S.C.A. 2674). Under the said statute, the general directive is that the government is to be held “in the same manner and to the same extent as a private individual under the circumstances.” The federal courts are directed to follow, not federal law of civil rights or otherwise, but the tort law of the state in which the tort occurred [28 U.S.C.A. 1346 (b)], including its choice of law rules.

88. By expressly recognizing the fact that individuals may file tort actions in U.S. courts against foreign states for acts committed in violation of the law of nations under its Alien Tort Act (28 U.S.C. 1350), the United States government has expressed its consent to be sued in foreign jurisdictions for its tortious conduct in violation of the law of nations.

89. Certainly, the destruction of the Philippine environment with the consequent loss of Philippine lives due to the irresponsible dumping and/or disposal of toxic wastes by the United States Government is violative of the law of nations, U.S. Federal laws, and the Philippine laws.

90. In addition to what is provided under the Federal Tort Claims Act (which exposes the United States government to liability for certain tort claims), various environmental statutes have waived the sovereign immunity of the United States and have permitted the filing of suits by affected individuals.

[a[ The Federal Water Pollution Control Act (33 U.S.C. 1367) (“FWPCA”) requires the United States to observe environmental laws relating to water pollution in the same manner and to the same extent as any nongovernmental entity. The FWPCA states:

“Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges.” 33 U.S.C. § 1323.

While operating Clark Air Base and Subic Naval Base, the United States knowingly engaged in activities which resulted in the discharge of pollutants. Moreover, it had jurisdiction over Clark Air Base as well as Subic Naval Base under the terms of the [1947 RP-US Military Bases Agreement]. Equally significant, the United States had authority over its own personnel to enforce the provisions of environmental laws and impose the standards to which it was subject under its own law as well as Philippine law.

[b] The Toxic Substances Control Act (15 USC 2602) (“TSCA”) likewise expressly authorizes the filing of civil suits against the U.S. Government, for violations of the TSCA, to wit:

“against any person (including the United States…) who is alleged to be in violation of this chapter or any rule promulgated under section 2603, 2604, or 2605 of this title or subchapter II or IV of this chapter, or order issued under section 2604 of this title or subchapter II or IV of this chapter to restrain such violation.” 15 U.S.C. § 2619(a)(1). See also U.S. Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627 (1992).

The inclusion of the phrase “including the United States” in the citizen suit provision clearly establishes the intent of legislators to make the U.S. government accountable for violations of environmental requirements and standards.

[c] Further, the Resource Conservation and Recovery Act (42 U.S.C. 6961) (“RCRA”), which covers solid and hazardous wastes, contains a similar waiver of sovereign immunity. The RCRA also permits citizen suits against the United States for violations of the Act (42 U.S.C. 6972).

[d] By virtue of the amendment of the Solid Waste Disposal Act under the Federal Facility Compliance Act of 1992 (Public Law 102-386, October 6, 1992), US legislators have expressly waived the sovereign immunity of the United States for purposes of enforcing Federal, State, interstate, and local requirements with respect to solid and hazardous waste management.

[v ]

INTERNATIONAL COMITY MANDATES THE FILING OF THE INSTANT ACTION AGAINST THE GOVERNMENT OF THE UNITED STATES OF AMERICA IN THE PHILIPPINES.

91. The right of equality of states has been asserted and affirmed in classical international documents since the days of Hugo Grotius. The ideas of independence and equality among states are sanctified by history and theory. They stem historically from the Peace of Westphalia in 1648 and theoretically from natural law. Emmerich Vattel regarded them as “fundamental, essential and absolute” rights along with existence, respect and territory.

92. The traditional doctrine is that whatever inequality may exist among States due to size, population, power, degree of civilization, wealth, persons, resources, access to oceans, armaments, and other characteristics, they are nevertheless equal as international persons.

93. In accordance with the traditional view, another consequence of the legal equality of states is that no state can claim jurisdiction over another. In Berizzi Brothers Co. v. SS Pesaro (271 US 562 [1926]), the Supreme Court of the United States, explained the raison d’etre for the doctrine:

“The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which includes every sovereign state to respect the independence and dignity of every sovereign state, each and every one declines to exercise by means of its courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to jurisdiction.”

94. The dictates of international comity notwithstanding, the United States of America does not actually adhere to the aforesaid international legal precept.

95. In 1789, the Congress of the United States passed the Alien Tort Statute which grants the U.S. district courts original jurisdiction over any civil action by an alien for a “tort only, committed in violation of the law of nations or a treaty of the United States (28 U.S.C. Sec. 1350).”

96. In 1980, through the Alien Tort Statute, the United States Court of Appeals, in the case of Filartiga v. Pena-Irala (639 Fed. 2d 876 [1980]), upheld federal jurisdiction over a suit between an alien (a Paraguayan) and an official of his own government (the Republic of Paraguay) for official torture committed within that government’s internal jurisdiction.

97. In Filartiga, the US Court of Appeals held thus:

“…Accordingly, we must conclude that the dictum in Dreyfus v. von Finck, supra, 534 F. 2d at 31, to the effect that “violations of international law do not occur when the aggrieved parties are nationals of the acting state,” is clearly out of tune with the current usage and practice of international law. The treaties and accords cited above, as well as the express foreign policy of our own government, all make it clear that international law confers fundamental rights upon all people vis-à-vis their own governments….

“Appellee submits that even if the alleged tort is a violation of modern international law, federal jurisdiction may not be exercised consistent with the dictates of Article III of the Constitution. The claim is without merit. Common law courts of general jurisdiction regularly adjudicate transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred. Moreover, as part of an articulated scheme of federal control over external affairs, Congress provided, in the First Judiciary Act, Sec. 9 (b), 1 Sta. 73, 77 (1789), for federal jurisdiction over suits by aliens where principles of international law are in issue. The constitutional basis for the Alien Tort Statute is the law of nations, which has always been a part of the federal common law (underscoring supplied).

“It is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction. A state or nation has a legitimate interest in the orderly resolution of disputes among those within its orders, and where the lex loci delicti commissi is applied, it is an expression of comity to give effect to the laws of the state where the wrong occurred.

x x x

“…we believe it is sufficient here to construe the Alien Tort Statute, not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.

x x x

“…It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute…”

x x x

“…Paraguay’s renunciation of torture as a legitimate instrument of state policy, however, does not strip the tort of its character as an international law violation, if it in fact occurred under color of government authority….”

98. Again, in Trajano v. Marcos (125 L.Ed. 2d 661, 113 S.Ct. 2959), the U.S. District Court of Hawaii exercised jurisdiction over a suit instituted by a Filipino citizen against Imee Marcos and Fabian Ver, likewise Filipino citizens and public officers under the Marcos regime, for alleged torture and wrongful death and proceeded to award to the plaintiff $ 4.4 Million in damages.

99. Verily, under the Alien Tort Statute, the courts of the United States may readily exercise jurisdiction over completely foreign tort cases, even those instituted against foreign governments, particularly when such concern violations of human rights.

100. Yet the official stance of the United States government on the matter does not stop with the aforesaid statute.

101. In 1976, the U.S. Congress passed the Foreign Sovereign Immunities Act (28 U.S.C., Secs. 1330, 1602-1611 [1994]) which enumerates the instances when American courts may compel a foreign state to appear in a civil action. The FSIA provides for both personal and subject matter jurisdiction over certain suits against foreign governmental entities. Under the FSIA, a foreign state is generally immune from suit unless the claim arises out of the Act’s list of exceptions.

102. Verily, the courts of the United States may take jurisdiction over actions against sovereign states for torts founded upon violations of international law and human rights.

103. To deny an equal and reciprocal right for any sovereign state, through its courts, to exercise jurisdiction over similar actions against the United states government would be a gross violation of the international legal principle of comity and equality of states.

104. Otherwise stated, if the United States allows the filing of suits against sovereign states in its own courts, an equal right should likewise be enjoyed by sovereign states in accordance with the principle of comity and equality.

105. After all, if the United States can hail a foreign government into its courts, international law dictates that any sovereign state must also possess the same capacity as a matter of right in keeping with the time-honored principle of comity.

[ vi ]

SOVEREIGN IMMUNITY MAY NOT BE INVOKED TO DEFEAT THE GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW ON THE PROTECTION OF HUMAN RIGHTS AND THE PRESERVATION OF THE ENVIRONMENT FOR THE COMMON BENEFIT OF MANKIND.

106. The archaic concept of sovereign immunity may not be invoked to allow States to destroy with impunity the “common heritage of mankind” and deprive future generations of their internationally-guaranteed right to a sound environment.

107. Such a traditional precept should not be allowed to prevail over the imperative to preserve the global environment for the benefit of the living and the future generations.

108. The world community could ill-afford to have guilty and irresponsible States hide behind the “royal prerogative of dishonesty” when such will surely result in the inexorable destruction of the global environment. This is especially so since States have achieved such a level of advancement where the unrestricted exercise of their “sovereign rights” to exploit their own environment and natural resources will ineluctably cause injury to neighboring states and the global community in general.

109. Potentially hazardous acts of “sovereign” states may not be effectively restricted if, at every turn, they may conveniently invoke ‘sovereign immunity” from suit, especially when actions for violations of international environmental norms are instituted against them by individuals who, in reality, are the direct recipients of the adverse effects thereof.

110.There is no cogent reason why States should not be governed by, and made accountable under, their own rules and the law of nations, especially when the matter involves not only the protection of the environment but also the lives and health of innocent individuals.

111. States have increasingly waived immunity particularly in the field of international environmental law, voting to become parties to international treaties and agreements and support enforcement and compliance procedures. Clearly, it is not unrealistic for government agencies to comply with the provisions of law while still preserving their political and security interests.

112. To shield a state (whether foreign or domestic) from suit would elevate sovereignty over justice and the fundamental human rights of individuals. It would be inconsistent with the advancements made in this era of globalization, political and economic interdependence, which both the Philippines and the United States have espoused, and which require States to act as responsible, just and law-abiding citizens of the world.

113. Absolute reliance on state immunity concepts breeds the injustice and inhumanity which people all over the world have struggled to overcome. Over the last 40 years, since the Nuremberg War Trials, more and more nations have found it appropriate to limit the excesses of state power and inquire into the basis for state acts. As in the Philippines (cf. Ministerio v. CFI, 40 SCRA 464), United States courts have held that states cannot be protected for violations of constitutional rights (see, for instance, Brown v. State, 89 NY2d 172; 674 NE2d 1129 (1996)). This supports the trend towards increased state responsibility and accountability, particularly in the context of international environmental law.

114. All the foregoing considered, it is the Philippine courts which have indubitable jurisdiction over the case.

ALLEGATIONS COMMON

TO ALL CAUSES OF ACTIONS

BRIEF HISTORICAL BACKGROUND

115. After almost fifty years (50) of subjugation and colonization, the Government of the United States of America granted political independence to the Philippines on 4 July 1946.

91. Barely eight (8) months thereafter, one of the several agreements that the U.S. Government required the new Philippine Government to sign was the Military Bases Agreement (“MBA” for brevity), which was signed on 14 March 1947.

92. This 1947 RP-US MBA allowed the U.S. to retain, maintain and operate its twenty three (23) military bases in the Philippines for ninety-nine (99) years, without obligations on the part of the U.S. to pay rental to the Philippines for the use of the land areas covered.

93. Later, the term of the 1947 RP-US MBA was reduced from 99 years to 44 years, or up to year 1991.

94. Of these 23 military bases in the Philippines, included were the Clark Air Base in Pampanga and Tarlac, and the Subic Naval Base in Zambales and Bataan.

CLARK AIR FORCE BASE

95. The Clark Air Force Base in Pampanga and Tarlac, located about fifty (50) miles north of Manila on the McArthur national highway, is reputed to be the largest United States military installation in Asia and second largest base in the US Air Force.

96. The Clark Air Force Base sprang from a grazing range established for the US Fifth Cavalry as a camp and was first declared a US military reservation in 1903. The old US Army first occupied Clark Field in 1902 as a feeding ground for its cavalry horses.

97. From the original 7,600 acres, Clark expanded to an area of 158,277 acres, larger in size than the District of Columbia in the US and about the size of Singapore. It was actually larger than the combined area of all US bases outside the continental USA.

98. Clark Air Base was then known as Fort Stotsenberg in memory of an American Colonel who died fighting Filipino nationalists in Bulacan province. Military aviation at Clark started in 1917.

99. The Fort was then enlarged to accommodate an airfield in 1918. The airfield was named after an aviation pioneer, Major Harold Clark, who died in an air crash in 1919.

100. After World War Two, with new aviation trends, the airfirelds at Clark were expanded. Clark became the homebase of the US “Fighting” 13th Air Force. The base proper had a total land area of 49,000 hectares enclosed with a 22-mile perimeter. Its assets include the following:

101. Clark Air Base also served as a major communications center and a training ground for US forces. It hosted the sophisticated training facility at the Crow Valley Bombing and Gunnery Range located about 22 kilometers northwest of Clark proper which provided a tactical range as well as bomb and strafe targets.

102. In 1985, the total base population at Clark was pegged at about 43,000 including 7,720 US military personnel of whom about 600 are on temporary duty and over 14,000 US dependents. There were also 9,000 direct-hire and contractual workers mainly in service-related work.

103. Capital investment at Clark in 1985 was pegged at US$ 1.5 Billion which represented the cost of runways, hangars, shops, warehouses, roads, housing and other facilities.

SUBIC NAVAL BASE

104. Subic Bay is a deep-water harbor, formed by volcanic activity, about fifty (50) miles northwest of Manila.

105. The Spanish government had already begun construction of a naval station at Subic Bay when US Admiral Dewey sailed into Manila in 1898. As early as 1884, it was decided by Spanish Royal Decree that Subic Bay serve as Spain’s main naval station in the Far East. Filipino corvee labor was used in the construction of the Spanish naval station which begun in 1885. Just before Dewey’s arrival in 1898, the harbor had been completely dregged and several buildings, including an arsenal, had been set up.

106. In 1901, then US President Franklin D. Roosevelt issued an executive order designating Subic Bay and 70,000 acres of adjacent land, including what is now Olongapo City, as a military reservation area. The naval reservation was established in 1904 and the Ship Repair Facility (SRF) was built in 1906.

107. After World War II, the US Navy began constructing Cubi Point Naval Air Station out of jungle and mountain. More than ninety (90) percent of the then Subic Naval Base area was in Bataan province while the rest was in Zambales.

108. The mission of the Subic Bay Naval Base was to support operating units of the US Seventh Fleet in the Western Pacific handling one million tons of supply per year. More important than the other US military base at Clark Field, Pampanga, Subic Naval Base was the largest naval supply depot in the world. It handled one million (1,000,000) barrels of fuel each month, providing storage and distribution of fuel and other consumable goods for the US Seventh Fleet, the US Medical Center, Clark Air Base and Camp John Hay. It also served as the major ship repair facility for the US Seventh Fleet which covers all US combat ships in the Asian region. Subic provided logistical, command and control, communications, training and medical support to the entire Seventh Fleet and its aircraft carriers.

109. Subic Naval Base covered 62,000 acres altogether composed of 36,000 acres (15,000 hectares) of land and 26,000 acres (11,000 hectares) of water. The berthing space at its three major wharves was 6,000 feet at depths ranging from 20 to 40 feet which could accommodate the US Navy’s largest aircraft carrier or submarine. On the other hand, the runway at Cubi Point Naval Air Station is 9,000 feet long.

110. In 1970, the installations at Subic were estimated to be worth $271 million, of which $236.4 million was plant property investment. The Subic Bay Naval Complex included the following facilities:

(1) The Naval Supply Depot (NSD). This facility provided wholesale fuel, cold storages and consumable supplies needed by the Seventh Fleet. The NSD had nearly 1.75 million square feet of storage space and carried an inventory of 180,000 items (80% of which is containerized). One of its most important responsibilities was the handling of petroleum products. It processed more than four million barrels of fuel a month including the responsibility of supplying Clark Air Base with aviation fuel through a 41-mile underground pipeline. The same transferred to vessels in port and then supplied to the Mobile Logistics Support Force which, in turn, replenished the ships of the Seventh Fleet at sea. Some 22 tanks comprised the “fuel farm” of the NSD which made it the largest facility of its kind in the world during its time.

(2) The US Naval Magazine (Camayan Point). This facility was composed of 5,200 hectares of ammunition wharf. It stored, renovated and issued ammunition and explosives in 200 permanent magazines and hardstands. The magazine complex itself consisted of two piers which allowed the direct transfer of ammunition between ships and the storage areas. It provided storage for 46,000 tons of ammunition and could process 15,000 to 25,000 tons of ammunition per month. It hosted 3.8 million cubic feet of ammunition storage in nine buildings and an ammunition wharf that could accommodate all major combatant ships of the US Seventh Fleet.

(3) Cubi Point Naval Air Station (Radford Field) was the primary support site for the Seventh Fleet’s attack carrier striking force, i.e. aircraft and aircraft carriers of the fleet, with apron-parking spaces of 313,000 square yards. It also served as the base for the submarine-hunting, nuclear-capable long-range patrol and reconnaissance planes of the US Navy.

(4) The US Naval Ship Repair Facility (SRF). This 110-acre facility, which included over 80,000 square feet of building space, was an extensive ship repair complex. Three principal wharves enclosed the area. It provided direct dry-docking overhaul, repair, alteration and conversion capabilities and performed 60 % of all Seventh Fleet repair work. At the SRF, US ships were nested up to three feet deep with portal and floating cranes alongside. Four floating dry docks capable of handling ships were also in operation. The shops of its Structural Group provided pipe and copper work, boiler services, welding, forging, sheet metal and ship-fitting activities. On the other hand, repairs extended by its Mechanical/Machinery Group ranged from those dealing with pumps and propellers to hydraulic and ordnance items. The facility is in constant operation, round-the-clock, year-round. During the Vietnam war, the SRF Subic accommodated up to 110 ships at a time(a typical base load today is 10 to 15 ships). Among the ships serviced by the SRF were nuclear-powered and –laden destroyers, cruisers and aircraft carriers of the US Seventh Fleet.

(5) The US Naval Regional Medical Center. It is located high above Subic Bay within the territorial jurisdiction of the province of Bataan. It provided general clinical and health services for active and retired personnel and their dependents.

(6) Training Facilities and Target Ranges. Amphibious and gunnery practices were likewise carried out within the base confines. The US Navy’s Jungle Survival Training courses were taught at the Cubi Point Naval Air Station. On the other hand, Green Beach at Subic Bay, along the Zambales coastline, was the training ground for the US Navy’s Special Warfare Department. The US Naval Forces also used nearby Los Frailes and Tabones Isalands forpractice air-to-surface bombing while Leon Creek was employed for ship gunfire and shore fire control practice. In addition, the Philippine government also allowed the US Navy to use training areas outside the base perimeter, like the Southeast Zambales Troop Training Area and Wild Horse Creek Close Air Support Range.

(7) Fleet Recreation Center (FRC). It was the largest R&R center for the crews of the US Seventh Fleet and included the island resort of Grande Island located at the mouth of Subic Bay. At the same time, the neighboring city of Olongapo hosted over 5,000 US personnel at any single day.

(8) Nuclear Submarine Facility. The Subic Naval Base likewise provided berthing facilities for the nuclear-powered and nuclear-armed submarines of the US Seventh Fleet.

IN 1991, THE PHILIPPINE SENATE REJECTED TREATY TO EXTEND STAY OF US BASES BEYOND 1991

111. In May 1990, a little over a year prior to the expiration of the 1947 RP-US MBA, the US and Philippine Governments started to negotiate for new military bases agreement.

112. Hence, on 27 August 1991, the U.S. and the Philippines signed a new agreement captioned “Treaty of Friendship, Cooperation and Security Between the Government of Republic of the Philippines and the Government of the United States of America”, which would have allowed the U.S. to retain its military bases in the Philippines for another ten (10) years.

113. However, the Philippine Senate, pursuant to the provisions of the 1987 Philippine Constitution, overwhelmingly rejected the 27 August 1991 Treaty, thereby ending the U.S. leasehold over all its military bases in the Philippines, including over Clark Air Base and Subic Naval Base.

114. Likewise prodded by the eruption of the Mt. Pinatubo in 1991, the U.S. Air Force completed its withdrawal or pull-out from Clark Air Base in November 1991, and the US Navy from Subic Naval Base in November 1992.

AFTER THE WITHDRAWAL BY US NAVY

AND AIR FORCE, TOXIC WASTES

WERE FOUND IN SUBIC AND CLARK

115. In June 1991, the volcanic eruption of Mt. Pinatubo in Zambales, which had remained dormant the past 600 years, ravaged the nearby municipalities and cities.

116. As a consequence, thousands of Filipino families who lived in and the surrounding communities were displaced as they were constrained to move to safer places.

117. Looking for a temporary resettlement area, the National Disaster Coordinating Council (NDCC) of the Philippine Department of National Defense (DND), in coordination with the Office of the President (OP) and the Department of Social Welfare and Development (DSWD), designated the Clark Air Base Communications Center (CABCOM) as the temporary evacuation center of all those families displaced by the Mt. Pinatubo eruption.

118. From 1991 up to 1999, an estimated number of almost Twenty Thousand (20,000) families were temporarily resettled in CABCOM, while the Philippine Government rushed the construction and completion of six (6) permanent resettlement areas[1] where the displaced families will eventually be relocated.

119. These displaced families temporarily resided in Cabcom for various lengths of time from 1991 to 1999. Some families stayed there for at least 3 years, while others resided there for 5 years.

120. While in Cabcom, these Mt. Pinatubo evacuees were given and permitted to install more than a hundred pump wells where they drew their daily water needs for drinking, cooking, milkmixing, bathing, laundry, and other daily requirements.

121. At the start, they complained of the odd odor, taste and color of the water drawn from the pump wells. But just after a few months after using the groundwater from these pump wells, some of these evacuees began to complain of stomach problems, skin disorders, among others. Soon pregnant women begun to experience spontaneous abortions, still births, birth defects or deformities.

122. Soon thereafter, many young children and old persons have died of various ailments including leukemia, cancer of various types, heart ailment, lung problem, kidney problem, among others.

123. As of 30 June 2000, the total number of toxic waste victims recorded by the People’s Task Force has reached 272 – with 24 children aging from 2 to 14 years old suffering from neurological disorder (cannot speak, walk, stand up, with deformities, or combinations thereof), 43 have various heart ailments, at least 7 have been found with leukemia while 14 others have leukemia symptoms, 40 have various types of cancer, 30 have skin disorders, 24 have various kidney problems, 27 have various lung or respiratory problems, 7 have undetermined stomach problems, 6 had several spontaneous abortions, 4 had still births, while 10 suffered sudden deaths for unknown causes. (For the latest of growing list of victims, as well as their illnesses, please refer to ANNEX _____)

124. The initial news reports on the deaths and illnesses suffered by the Cabcom residents brought to the fore the issue of toxic waste contamination in the former Clark Air Base. In part, this reported toxic waste contamination in Cabcom led to the investigations and studies conducted by various groups on the matter.

125. These various studies[2] and reports show that the following toxic chemicals and contaminants, among other substances, have been found in Cabcom, Clark Air Base — lead, mercury, nitrates, polychlorinated biphenyls (PCBs), benzene, solvents such as trichloroethylene, methylene chloride, methanol, and glycol ethers, acids, surfactants, petroleum hydrocarbons, and asbestos.

126. Samples of these chemicals and substances have been found in studies conducted from 1994 to 2000, indicating their resistance to degradation, possible formation of more toxic chemicals and substances, persistence in the environment and the continued peril to the health and life of the inhabitants and residents in the surrounding areas. It is significant to note that these studies were conducted by different independent groups based on the reported clustering of diseases and abnormalities, as well as documents released by the US Department of Defense and the US General Accounting Office.

127. One of these reports and studies came from an agency of the US Government itself – the U.S. General Accounting Office (GAO), the investigative arm of the U.S. Congress.

128. On 22 January 1992, the National Security and International Affairs Division of the US GAO submitted a report entitled “Military Bases Closure: U.S. Financial Obligations in the Philippines” (hereinafter referred to as the “22 January 1992 U.S. GAO Report”) to the following persons: (i) U.S. Senator Daniel K. Inouye and Senator Ted Stevens of the Senate SubCommittee on Defense; (ii) the U.S. Senate Committee on Appropriations; (iii) the U.S. Secretary of Defense; and (iv) the U.S. Secretary of State. A copy of this report is herewith attached as Annex __________ hereof.

129. Said 22 January 1992 U.S. GAO Report stated in part:

“Although the services are not generally required to comply with U.S. standards at overseas locations, some service regulations indicate that they are intended to apply overseas. Environmental officers at both Clark and Subic Naval Facility have identified contaminated sites and facilities that would not be in complaince with U.S. environmental standards. Their identification of contamination is based on limited environmental surveys of Clark Air Base and the Subic Bay Naval Facility. No soil and water testing has been conducted in the contaminated areas, therefore, the extent of the damage is not known. According to one Air Force official, the testing alone would be very costly, and the cost of clean-up and restoration would be significantly greater. According to base officials, both Clark and Subic Bay Naval Facility have common environmental problems with underground storage tanks lack leak detection equipment, and fire-fighting facilities have no drainage systems. Instead, the fuel and chemicals used in fire-fighting exercises seep directly into the soil and water table, and at the Navy facility, the overflow goes directly into the Subic Bay.

“The Subic Bay Naval Facility does not have a complate sanitary sewer system and treatment facility. Instead, sewage and process waste waters from the naval base and air station industrial complexes are discharged directly into Subic Bay. Only 25% of the 5 million gallons of sewage generated daily is treated.

“Lead and other heavy metals from the ship repeiar facility’s sandblasting site drain directly into the bay or are buried in the landfill. Neither procedure complies with U.S. standards, which require that lead and heavy metals be handled and disposed of as hazardous waste.

“The Subic Bay Naval Facility’s power plant contains unknown amounts of polychlorinated biphenyl (PCBs) and emits untreated pollutants directly into the air. No testing has been performed to analyze the content of emissions, but officials stated that air emissions would not meet U.S. clean air standards.”

130. The above information disclosed in the U.S. GAO Report were confirmed by separate reports, such as the following documents released in 1993 by the U.S. Department of Defense to the Philippine Government: (i) “Environmental Review of the Drawdown Activities at Clark Air Base, Republic of the Philippines” by Col. John J. Allen [September 1991]; (ii) “Potential Restoration Sites on Board the U.S. Facility, Subic Bay” [October 1992], which identified 28 potentially contaminated sites in Subic and 28 potentially contaminated training areas and ranges utilized by naval forces; and (ii) “Underground Storage Tank Inventory: Subic Bay, Philippines”.

131. In early 1993, the World Health Organization (WHO) conducted interviews and site assessment of Subic Bay for environmental risk assessment and investigation program. On 9 May 1993, the WHO submitted its Mission Report with the following summary of findings:

a)that landfills on site were used for dumping of all kinds of wastes, including toxic or hazardous waste materials;

b)that industrial wastewaters, untreated sewage and polluted storm water drains were all directly discharged to Subic Bay, mostly without treatment;

c)that very large volumes of fuel and oil were stored, transferred and used around the site.

d)The Mission Report listed areas with considerable pollution potential, such as those which used or stored toxic chemicals, fuels, pesticides, herbicides, polychlorinated biphenyl (PCB), chlorinated solvents and explosives, as well as those which produced hazardous wastes, and those with heavy engineering operations and sandbasting;

e)The Mission Report recommended further sampling and analysis programs of near-surface and deeper soils, groundwater and sediments in waterways and Subic Bay, costing around U.S.$600,000.00.

132. On 13 August 1994, a US-based Team composed of Paul Bloom (PhD.), Alex Carlos (M.S.), Jorge Emmanuel (PhD.) and Theodore Schettler (M.D.) released a Report entitled “An Environmental and Health Impact Report on Known and Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines”.

134. The Team’s Report recommended that actions be initiated to complete the assessment of toxic contamination and to clean-up the identified toxic sites.

135. In January 1995, the Philippine Department of Health took samples of the groundwater taken inside Clark and a number of communities surrounding the former U.S. military air base. Out of the 32 samples, 5 tested positive for oil and grease. A copy of the DOH Study is herewith attached as Annex _____ hereof.

136. The DOH study was undertaken to determine the health status of CAMCOM Evacuation and the possible effects of selected chemicals (Lead, mercury, Nitrate, and Benzene) to their health.

137. The report took note that a number of the adults and children had high blood levels and that some already needed medical treatment. A number of the children were suffering from stunted growth and were underweight. Of the women subject, 8 out of 19 had a history of spontaneous abortions during their stay in the area.

138. The report observed that “the presence of hematologic, reproductive and developmental problems is highly suggestive of source(s) of exposure in the area.” With the recommendation that immediate health intervention must be given to chidlren and adults in the area with anemia especially among the pregnant women and stunted and malnourished children. Detoxification among those found to have high levels of blood lead must be instituted after clinical evaluation. The pregnant women found with high blood lead levels must be monitored closely together with their offsprings.”

139. In 1996, Dr. Rosalie Bertell, a Canadian epidemiologist, conducted a health survey of 761 families in 13 communities around Clark Air Base. In her letter to then Philippine President Fidel V. Ramos dated 9 October 1997, Dr. Bertell noted the “startlingly high” level of kidney diseases and kidney problems reported in the area which is “apparently connected with both water and air exposures.” A copy of Bertell’s Study is herewith attached as Annex _____ hereof.

140. The study was conducted as a response to the pervasive ill-health and unexplained infantile deaths in the communities around the base which the government refused to take swift and decisive action. Through the persistence of the PTFBC, world renowned epidemiologist Dr. Rosalie Bertell and the Canadian Institute for the Concern of Public Health conducted the survey.

141. Overall, the survey showed that communities around the base had conspicuously high rates of female urinary tract infection and nervous system disorders. The highest rate occurring in CABCOM, Margot, Macapagal, Sapang Bata, Poblacion and San Joaquin. Consequently, these are the same communities that were earlier identified nearest to landfill sites or located next to known contaminated sites.

142. Conclusively, the study established the following relationships:

1.“Poor water quality was associated with all kidney and urinary tract infections;

2.Corrosive drinking water was significantly related to respiratory problems;

3.Water with unusual taste or smell was related to problems with the nervous system; and

4.Dust was associated with kidney problems.”

143. In 1997, the Clark Development Corporation (CDC) of the Philippines commissioned the U.S. based Weston International Environmentalists Group to conduct an environmental, soil and water baseline study in Clark, Pampanga. In September 1997, the CDC released the results of the Weston International Environmental Baseline Study and Soil and Water Baseline Study at Clark (hereinafter referred to as the “Weston Study”). A copy of the Executive Summary of the Weston Study is herewith attached as Annex _____ hereof.

144. For the water baseline test, the Weston Study found 22 sites to be contaminated by different chemicals and compounds like oil and petroleum lubricants, pesticides, lead, and PCBs. A summary of these findings is set forth hereunder:

Contamination exceeding RBC criteria was detected. Potential for human exposure to contamination in the soil is low due to current activity at the site. The potential exists that hazardous wastes will migrate to the ground water at MLF. This is a medium risk site.

The potential exists that other classes of hazardous wastes may have been disposed of at the landfill.

Actions should consist of groundwater investigation.

Fire Training Area (FTA)

Contamination exceeding RBC criteria was detected. Potential for humane exposure to contamination in the soil is low due to current activity at the site. Contamination indicates possible migration top groundwater. This is a medium risk site.

Test pits in the large burn are showed heavy petroleum contamination.

TPH levels exceeded 800mg/kg.

The pesticide aldrin was found in the soil at concentrations greater than 16 times the industrial RBC criteria.

Actions should include additional soil characterization and groundwater sampling.

Power Plant (PP)

Contamination of surface soil and current activities at this site is a potential human hazard due to contact with workers with surface oils. This s potentially high risk site if contact with contaminated soil occurs.

Visible oil staining and odors present at numerous locations.

Field screening for PCB shows levels of PCB contamination.

Laboratory analysis yielded low levels of PCB contamination.

The recommendations made previously by WESTON regarding the cleanup of environmentally hazardous materials at the PP complex remains valid.

Current work practices at the operating PP continue to adversely affect the environment.

Corrosion Control Area (CC)

Detected concentrations do not exceed RBC criteria, and the potential for human exposure is low due to the presence of the concrete pavement. This is a low risk site.

This site received limited investigation due to the thick concrete surface.

One soil sample showed TPH at 139mg/kg.

Groundwater adjacent tot he site should be evaluated prior to the deleting this as an area of concern.

Defense Reutilization and Marketing Office Storage Yard Area (DRMO)

Lead was detected below the industrial RBC criteria of 1,000 mg/kg. While detected contaminants were few, evidence exists that petroleum contamination may be migrating to groundwater. This is a medium risk site.

The field survey shows little of environmental concern.

Laboratory analysis yielded TPH concentrations of up to 1,500 mg/kg.

Groundwater samples should be analzyed both in DRMO yard and downgradient of DRMO to conclusively evaluate this site.

Jet Engine Test Cell (JETC)

Contamination was not detected above RBC criteria. No human health hazards are evident. This is a low risk site.

With the exception of a 100 mg/kg TPH hit ina soil sample, there were no other indications of contamination at this site.

Groundwater monitoring downgradient of this suspected site should be completed prior to deleting the JETC as an area of concern.

Civil Engineering Entomology (CEE)

Contamination exceeding RBC criteria was detected. Pesticides could pose a health risk if the soils are exposed. Contamination may also be leaching to groundwater. This is a medium risk site.

Clear evidence was found of former pesticide presence and contamination at this site; numerous pesticides were found in the soil.

Dieldrin exceeds the industrial RBC criteria over five times.

TPH was found dat over 5,000 mg/kg.

Additional soil and groundwater characterization definitely needed.

California Bus Line Motor Pool (CBLMP)

Contamination exceeding RBC criteria was detected. Contamination may also be leaching to groundwater. This is a potentially high risk site if contact with contaminated soil occurs.

A lead concentration of 580 mg/kg was below industrial RBC of 1,000 mg/kg.

Aldrin found at levels 15 times the industrial RBC criteria, and DDD found at levels below the industrial RBC.

Considering the location and current activity, further soil and groundwater characterization should be a priority.

Motor Pool (MP)

Lead was detected at levels 2 times the industrial RBC crietria. Potential for human exposure to contaminants in the soil is low due to current activity at the area. Petroleum contamination detected suggests potential migration to groundwater. This is a medium risk site.

TPH found in two of three samples at levels up to 5,820 mg/kg.

A lead concentration of 2,000 mg/kg, which exceeds the RBC industrial criteria of 1,000 mg/kg was found adjacent to the former Battery shop.

Fuel System Repair Shop (FSR)

Soil contamination does not exceed RBC criteria and human health threats are not evident. The high concentrations of petroleum contamination indicates possible soil migration of contaminants to groundwater. This is a low risk site.

Field survey shows strong signs of contamination; one test pit evacuated during excavation due to high level of airborne contaminants.

Clear indication of jet fuel contamination.

146. The Weston Study further stated that “(T)hese are contaminants found elsewhere in places where you have aviation and motorpool areas. Some water production wells registered levels of arsenic and dieldrin above Philippine National Standards (PNS) x x x x.”

147. The analytes found in the sites covered by the Weston Study are proven to have short and long term deleterious effects on human beings.

148. On 13 April 1999, a number of Cabcom residents filed a complaint with the Commission on Human Rights (CHR). After conducting an on-site investigation, the CHR Forensics Office reported that those persons medically examined showed signs and symptoms consistent with hazardous or toxic chemical exposure. A copy of the CHR Forensics Office’s Report is herewith attached as Annex ______ hereof.

149. Of those examined, 13 children aged 1 to 7 years old showed signs of birth defects and neurological disorder. Four (4) females suffered spontaneous abortions and still births, which can be attributed to mercury exposure. Those examined likewise showed signs of central nervous system disorders, kidney disorder and cyanosis (methemoglobin) which can be traced to nitrates exposure.

150. The laboratory analysis of water samples collected by the CHR Team from different deep well sites at Clark Air Base Command (Cabcom) revealed the presence of mercury and nitrates.

150. Based upon the medical findings, the Commission on Human Rights made the following recommendations:

1.“The removal of the residents from the contaminated sites, as soon as possible;

2.Thorough diagnostic work up and treatment of the patients; and

3.For the Philippine government to persuade the U.S. government to conduct a massive clean up on the contaminated areas and to compensate the victims of the said toxic waste.”

151. The Philippine Senate Committees on Environment and Natural Resources, Health and Demography, and Foreign Relations conducted an investigation on the reported toxic waste contamination in Clark and Subic. On 16 May 2000, these Senate Committees released their report and findings on the matter, contained in Senate Committee Report No. 237.

152. The pertinent portions of the aforesaid Committee Report No. 237 of the Philippine Senate are quoted hereunder for easy reference, to wit (emphasis supplied):

a) “Based on the documents released by the U.S. Department of Defense, there is substantial environmental contamination in the former Subic Bay Naval Base and Clark Field Air Base;

b) “It is evident from the documents released by the U.S. Department of Defense that the United States Government has knowledge of the existence and location of known and potential contaminated sites in the former Subic Bay Naval Base and Clark Field Air Base;

c) “The hazardous activities, operations and improper waste management practices engaged in by the United States Government within the military bases under its effective control involved appreciable or foreseeable risk of causing environmental harm;

d) “The United States Government is presumed to know or had the means of knowing that such hazardous activities, operations and improper waste management practices were carried out by the U.S. forces within the military bases over which it had effective control and unhampered access;

e) “The environmental damage caused in Subic and Clark was substantial and had serious adverse ecological, human health and economic implications for the residents within the are and for the Philippines in general;

f) “The hazardous activities, operations and improper waste management practices engaged in by the United States forces within the military bases caused the environmental damage;

g) “The 1947 Military Bases Agreement, as amended, did not grant any license or authority to the United States to commit acts of tort by indiscriminately disposing of toxic and hazardous wastes as it pleases, destroy the environment and endanger the lives of Filipino citizens in exchange for non-removable buildings and structures;

h) “Inasmuch as the activities conducted within the military bases and under the effective control of the U.S. caused substantial harm, the United States has the corresponding duty to repair and compensate for such damage; x x x”

MEDICALLY KNOWN ADVERSE EFFECTS

ON HUMAN HEALTH AND LIFE OF THE

TOXIC CHEMICALS FOUND IN CABCOM

153. As shown hereunder, the medically known adverse effects of the toxic chemicals and substances found in Cabcom, Clark Air Base indubitably show or demonstrate that the numerous deaths and illnesses suffered by the victims are caused or directly attributable to said toxic chemicals or wastes.

154. The aforecited studies also indicate the medically known adverse effects on human life and health of these toxic chemicals and substances found.

PCBs (polychlorinated biphenyls), for instance, are known to interfere with reproduction; children born to women who ingest food with PCB content show decreased birth weight, reduced head circumference, and tend to deliver prematurely. The children display deficiency in weight gain and decreased intellectual performance. PCBs suppress the immune system and induce liver enzymes. Chronic exposures cause skin disorders. PCBs promote tumors in experimental animals and may be carcinogenic in humans.

Mercury is known to affect the nervous system and cause birth defects and neurological disorders. Nitrates are known to cause central nervous system disorders, kidney disorders and cyanosis.

Asbestos fragments and fibers, when inhaled, are known to be a cause of lung cancer and mesothelioma as well as asbestosis and pleural disease. Ingestion of asbestos may also cause gastrointestinal cancer.

Solvents such as trichloroethylene, methylene chloride, methanol, and glycol ethers have been found to cause a variety of illnesses. Among other ailments, these solvents are known to cause or are suspected of causing cancer, birth defects, infertility, impairment of cognitive and psychomotor performance, and damage to skin, liver, blood, central nervous system, lungs and/or kidneys.

Most petroleum contain various aromatics (benzene, touene, ethyl benzene and xylenes) which could result in liver and kidney damage, and could affect fetal development in pregnant women. The most toxic compound is benzene, chronic exposure to which can result in aplastic anemia, bone marrow changes and other effects on the blood. It has been linked to chromosomal aberrations and as a known carcinogen, causes leukemia.[5]

155. For purposes of clarity and easy reference, a summary of the medically known adverse effects on human health and life of the toxins/analytes found in Cabcom, Clark Air Base are outlined hereunder.

Toxicity & Carcinogenic Characteristics of the chemicals found in Clark and Subic according to the U.S. Department of Health and Human Services

Toxin/Analyte

Toxicity, Symptoms, Signs, Notes

Carcinogenic Characteristics

Arsenic

Inorganic arsenic is deadly. Organic arsenic is less harmful.High levels of inorganic arsenic in food or water can be fatal. A high level is 60 parts of arsenic per million parts of food or water (60 ppm). Arsenic damages many tissues including nerves, stomach and intestines, and skin. Breathing at high levels can give you a sore throat and irritated lungs.

Lower levels of exposure to inorganic arsenic may cause:

§ Nausea, vomiting, and diarrhea

§ Decreased production of red and white blood cells

§ Abnormal heart rhythm

§ Blood vessel damage

§ A pins and needles sensation in the hands and feet.

The Department of Health and Human Services has determined that arsenic is a known carcinogen. Breathing inorganic arsenic increases the risk of lung cancer. Ingesting the same increases the risk of skin cancer and tumors of the bladder, kidney and liver.

Lead

Lead affects almost every organ and system in the human body. The most susceptible to such is the central nervous system, especially in children. It also damages the kidneys and the immune system. The effects are the same whether it is breathed or ingested.

Exposure to lead is more dangerous for young and unborn children. Unborn children can be exposed to lead through their mothers. Harmful effects include premature births, smaller babies, decreased mental ability I the infant, learning difficulties, and reduced growth in children. These effects are more common after exposure to high levels of lead.

In adults, lead may decrease reaction time, cause weakness in fingers, wrists or ankles, and possibly affect the memory. Lead may cause anemia. it can cause abortion and damage to the male reproductive system.

The Department of Health and Human Services has determined that lead acetate and lead phosphate may be reasonably anticipated to be carcinogens based on studies in animals.

Mercury

The nervous system is sensitive to all forms of mercury. Methyl mercury and metal vapors are more harmful than other forms, because more mercury in these forms in these forms reaches the brain. Exposure to high levels of metallic, inorganic, or organic mercury can permanently damage the brain, kidneys, and developing fetus. Effects on brain functioning may result in irritability,shyness, tremors, changes in vision or hearing, and memory problems.

Short term exposure to high levels of metallic mercury vapors causes damage to the lungs, nausea, vomiting, diarrhea, increase in blood pressure or heart rate, skin rashes, and eye irritation.

Mercuric chloride has caused increases in several types of tumor in rats and mice, while methyl mercury increased kidney tumors in male mice. The US EPA has determined that mercuric chloride and methyl mercury are possible human carcinogens.

Aldrin/Dieldrin

Aldrin and dieldrin are insecticides with similar structures. They are discussed together in this fact sheet because aldrin quickly

breaks down to dieldrin in the body and in the environment. Pure aldrin and dieldrin are white powders with a mild chemical

odor. The less pure commercial powders have a tan color. Aldrin and dieldrin do not occur naturally in the environment.

Aldrin and dieldrin mainly affect the central nervous system.

Accidental or intentional ingestion of high levels of aldrin and dieldrin result in convulsions and death. These levels are many

thousands of times higher than the average exposure.

Ingesting moderate levels of aldrin or dieldrin over a longer period may also cause convulsions. This occurs because aldrin

and dieldrin build up in our bodies.

We don’t know the effects of exposure to low levels of aldrin or dieldrin over a long time. Some workers who made or applied

the insecticides had nervous system effects with excitation leading to convulsions. Lesser effects in some workers included:

§ headaches

§ dizziness

§ vomiting

§ irritability

§ uncontrolled muscle movements.

Workers removed from the source of exposure rapidly recovered from most of these effects.

Studies in animals indicate that aldrin or dieldrin may reduce the body’s ability to resist infection.

The International Agency for Research on Cancer has determined that aldrin and dieldrin are not classifiable as to their

carcinogenicity to humans. There is no direct evidence that aldrin or dieldrin causes cancer in humans. Studies on workers

generally show no increase in cancer or deaths due to cancer. Mice given high amounts of dieldrin, however, did develop liver

Breathing, drinking or touching 1,1,2,2- Tetrachlorene can cause liver damage, stomachaches, or dizziness if exposed to large amounts for along period of time.

In a long term study, 1,1,2,2- Tetrachlorene caused an increase in liver tumors in mice.

1,2 – Dichloroethane Cis-1,2 Dichloroethane Trans-1,2 Dichloroethane

Breathing high levels of 1,2 – Dichloroethane causes nausea, drowsiness, and fatigue; very high levels can cause death.

When animals breathed high levels of trans-1,2- Dichloroethane for short or long periods of time, their livers and lungs were damaged and the effects were more sever with longer exposure times. Animals that breathed very high levels of trans-1,2- Dichloroethane had damaged hearts.

Lower doses of Cis-1,2 Dichloroethane caused effects on the blood, such as decreased number of red blood cells and also effects on the liver.

The long term (365 days or longer) human health effects after exposure to low concentrations of 1,2 Dichloroethane aren’t known. One animal study suggested that an exposed fetus may not grow as quickly as one that hasn’t been exposed.

Not classifiable.

Benzene

Breathing very high levels of benzene, while high levels can cause drowsiness, dizziness, rapid heart rate, headaches, tremors, confusion and unconsciousness. Eating or drinking foods containing high levels of benzene can cause vomiting, irritation of the stomach, dizziness, sleepiness, convulsions, rapid heart rate, and death.

The major effect of benzene from long term (365 days or longer) exposure is on the blood. Benzene causes harmful effects on the bone marrow and cause a decrease in red blood cells leading to anemia. It can also cause excessive bleeding and can affect the immune system, increasing the chance for infection.

Some women who breathed high levels of benzene for many months had irregular menstrual periods and a decrease in the size of their ovaries. It is not known whether benzene exposure affects the developing fetus in pregnant women or fertility in men. Animal studies have shown low birth weights, delayed bone formation, and marrow damage when pregnant animals breathed benzene.

The U.S. Department of Health and Human Services has determined that benzene is a known human carcinogen. Long- term exposure to high levels of benzene in the air can cause leukemia, cancer of the blood forming organs.

Inhaling a high levels of toulene for a short period causes light headedness, dizzyness, or sleepiness, unconsciousness and even death.

Repeated exposure to high levels can lead to permanent brain and speech damage, vision and hearing problems, loss of muscle control, and poor balance. It can also cause memory loss and decreased mental ability.

Toulene also affects the kidneys.

Several studies have shown that unborn animals were harmed when their mothers breathed high levels of toulene. Babies can have neurological problems and retarded growth and development if their mothers breath a high level of toulene during pregnancy.

irritation of the skin, eyes, nose, and throat, difficulty in breathing

Very high levels of exposure –

Unconsciousness and death

Studies of unborn animals indicate that high concentrations of xylene may cause increased numbers of deaths, and delayed growth and development. In many instances these same concentrations also cause damage to the mothers.

Not classifiable

Nitrate

Commonly found in munitions and explosives (dynamite is 60% nitrate), in certin plants and in well water. It is well absorbed orally and metabolized by gastrointestinal bacteria to nitrites and eliminated in the kidney. It is a common cause of methemoglobinemia. Neural tube defects have been caused by high levels of nitrates in drinking water and spontaneous abortions may be associated with nitrate exposure.

Sulfate

Ingestion of high levels of sulfate in water and infant formula have caused diarrhea and dehydration in animals and humans, with

infants showing a greater sensitivity. In adult humans, individuals have become acclimated to high sulfate levels in a short period

of time, resulting in a cessation of ill effects. Infants appear to be more sensitive to the toxic effects of sulfate than adults; several

cases of diarrhea and gastroenteritis have been reported in human infants, ages 5 months to 12 months old, consuming formula

prepared with water containing 630,000 to 1,150,000 ppb. The effects ceased when this high-sulfate water was no longer used

(55 FR 30370).

Ingestion of drinking water containing sulfates at the concentrations reported from on-site wells could produce diarrhea,

Especially in infants.

156. The Forensic Report submitted to the Commission on Human Rights already categorically indicates that the mercury and nitrates found in water samples obtained by the Forensic Team in the Cabcom area were present in levels or values exceeding the standard set by the World Health Organization (WHO).

157. In 1996, a Canadian epidemiologist, Dr. Rosalie Bertell, conducted a health survey of 761 families in 13 communities around Clark Air Base. As earlier cited in this Complaint, Dr. Bertell’s letter to former President Ramos dated October 9, 1997 noted the “startingly high” level of kidney diseases and kidney problems in the area which is “apparently connected with both water and air exposures.”

TYPES OF ILLNESSES AND CAUSES OF DEATH

OF VICTIMS FROM CABCOM, CLARK AIR BASE

158. As of 30 June 2000, the total number of toxic waste victims recorded by the People’s Task Force for Bases Clean Up (PTFBC) and the undersigned law firm has reached 272, with the following types of illnesses:

· 24 children aging from 2 to 14 years old suffering from central nervous system disorders (cannot speak, walk, stand up, with deformities, or combinations thereof)

· 43 have various heart ailments, at least 7 have been found with leukemia while 14 others have leukemia symptoms

· 40 have various types of cancer

· 30 have skin disorders,

· 24 have various kidney problems,

· 27 have various lung or respiratory problems,

· 7 have undetermined stomach problems,

· 6 had several spontaneous abortions,

· 4 had still births,

· 10 suffered sudden deaths for unknown causes,

· 2 liver cancer

159. For the latest of growing list of victims, as well as their illnesses, please refer to Annex “E” hereof. Their medical condition has been certified by various medical practitioners from the Philippine General Hospital and other government health institutions and agencies.

160. Based on the types of ailments listed above, as well as the medically known effects on human life and health of those toxins found in Cabcom, it is indubitable that these ailments suffered by the plaintiff victims are caused by or directly attributable to said toxic contaminants found in the area.

161. Since 1994, when the Philippine Government learned of the toxic contamination in the area, the plaintiff victims had started demanding for the clean up of the affected areas as well as compensation and assistance from both governments.

162. However, despite the lapse of many years, their cry for justice remains unheeded.

163. Hence, on 20 July 2000, the plaintiffs through undersigned counsels served demand letters (received copies are attached as Annexes “K” and “L”) on the defendants demanding, among other things, the clean up of the affected areas and the payment of damages to the victims.

164. However, despite the lapse of almost one (1) month since the service of said demand letters, the defendants have by their silence refused to acknowledge plaintiffs’ problem and demands.

165. Hence, the filing of this Complaint.

FIRST TO EIGHTEENTH CAUSES OF ACTION

(Liability of Defendants Departments of the United States Government for Wrongful Deaths)

166. The foregoing allegations are reproduced and repleaded herein by reference.

167. Under the 1947 Military Bases Agreement entered into between the governments of the Republic of the Philippines and the United States of America, the latter was accorded, among others, the following rights and obligations:

“Article III

DESCRIPTION OF RIGHTS

1.It is mutually agreed that the United States shall have the rights, power and authority within the bases which are necessary for the establishment, use operation and defense thereof of appropriate for the control thereof and all the rights, power and authority within the limits of territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them, or appropriate for their control.

2.Such rights, power and authority shall include, inter alia, the right, power and authority;

(b)to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases;

(c)to control (including the right to prohibit ) in so far as may be required for the efficient operation and safety of the bases, and within the limits of military necessity, anchorages, moorings, landings, takeoffs, movements and operation of ships and water borne craft, aircraft and other vehicles on water, in the air or on land comprising or in the vicinity of the basses;

(d)the right to acquire, as may be agreed between the two Governments, such rights of way, and to construct thereon, as may be required for military purposes, wire and radio communications facilities, including submarine and subterranean cables, pipe lines and spur tracks from railroads to bases, and the right, as may be agreed upon between the two Governments to construct the necessary facilities;

(e)to construct, install, maintain, and employ on any base any type of facilities, weapons, substance, device, vessels, or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological system, aerial and water navigation lights, radio and radar apparatus and electronic devices, of any desired power, type of emission and frequency.

3. In the exercise of the above-mentioned rights, power and authority, the United States agrees that the powers granted to it will not be used unreasonably or, unless required by military necessity determined by the two Governments, so as to interfere with the necessary rights of navigation, aviation, communication, or land travel within the territories of the Philippines. In the practical application outside the bases of the rights, power and authority granted in this Article there shall be as the occasion required, consultation between the two Governments.

x x x

Article VI

MANEUVER AND OTHER AREAS

The United States shall, subject to previous agreement with the Philippines, have the right to use land and coastal sea areas of appropriate size and location for periodic maneuvers, for additional staging areas, bombing and gunnery ranges, and for such intermediate, airfields as may be required for safe and efficient air operations. Operations in such areas shall be carried on with due regard and safeguards for the public safety.

x x x

Article VIII

HEALTH MEASURES OUTSIDE BASES

It is mutually agreed that the United States may construct, subject to agreement by the appropriate Philippine authorities, wells, water catchment areas or dams to insure an ample supply of water for all base operations and personnel. The United States shall likewise have the right, in cooperation with the appropriate authorities of the Philippines, to take such steps as may be mutually agreed upon to be necessary to improve health and sanitation in areas contiguous to the bases, in cliding the right under such conditions as may be mutually agreed upon, to enter and inspect any privately owned property. The United States shall pay just compensaton for any injury to persons or damage to property that may result from action taken in connection with this Article.

x x x

Article XXIII

CIVIL LIABILITY

For the purpose of promoting and maintaining friendly relations by the prompt settlement of meritorious claims, the United States shall pay just and reasonable compensation, when accepted by claimants in full satisfaction and in final settlement, for claims, including claims of insured by excluding claims of subrogees, on account of damage to or loss destruction of private property, both real and personal, or personal injury or death of inhabitants of the Philippines, when such damage, loss, or individual members thereof including military or civilian employees thereof, or otherwise incident to non-combat activities of such forces; provided that no claim shall be considered unless presented within one year after the occurrence of the accident or incident out of which such claim arises “

168. During the lifetime of the said agreement, the defendants Departments of the Government of the United States of America were under legal obligation to observe Philippine laws, then in force, on the protection of the environment, in accordance with Article 14 of the New Civil Code of the Philippines which states:

“ART. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations.”

169. Ostensibly, the Philippine laws on the protection of the environment deal with public safety.

170. Among the Philippine environmental laws which were obligatory upon the Departments of Defense and Air Force of the United States government, while these were engaged in the operation of the former military base at Clark Field, Pampanga, are the following:

171. Barely two (2) years after the pull-out of American personnel from the military base in Clark Field, Pampanga in 1991, there was a sudden rise in the incidence of diseases, often fatal, directly attributable to toxic chemicals, among persons who, for lengthy periods of time, resided at the former CABCOM area of Clark Field, Pampanga.

172. Studies conducted in the same area about three (3) years later revealed high levels of concentration of toxic chemicals in scattered, unmarked and evidently non-dumpsite areas.

173. The high levels of toxic chemicals thus discovered are directly attributable to activities undertaken by the Departments of Defense and Air Force of the United States at Clark Field.

174. The presence of such high-levels of concentration of toxic chemicals in the aforesaid places patently manifest the willful disregard of Philippine environmental laws by the Departments of Defense and Air Force of the United States of America.

175. Otherwise stated, the scattering of high levels of toxic chemicals within the former CABCOM and other areas of Clark Field, places which are ostensibly not identified as dumpsites, is proof that Philippine environmental laws, particularly those dealing with proper and safe waste disposal, were willfully and recklessly disregarded by the Departments of Defense and Air Force of the United States government.

176. Plaintiffs who resided in the former CABCOM area, and its environs, at Clark Field for at least two (2) years due to the eruption of Mount Pinatubo, were unduly exposed to the aforesaid toxic chemicals.

177. The exposure of the Plaintiffs to toxic chemicals was due to the contact with contaminated soil and air as well as the ingestion of befouled water in the aforesaid places.

178. The very old and the very young, by reason of their weak constitutions, were most severely affected by such undue exposure to high levels of toxic and hazardous chemicals.

179. Such wanton disregard by the Departments of Defense and Air Force of the United States of America of the aforestated Philippine environmental laws directly led to the untimely deaths of EIGHTEEN (18) persons to date.

180. For directly causing the untimely deaths of eighteen (18) persons who were former residents of the CABCOM area at Clark Field, the defendants Departments of Defense and Air Force of the United States of America are liable to the Plaintiffs for the amount of FIFTY THOUSAND PESOS (PHP 50,000) for each death, in accordance with the ruling of the Supreme Court in People v. Sazon (189 SCRA 900), or the total amount of NINE HUNDRED THOUSAND PESOS (PhP 900,000).

NINETEENTH TO THIRTY SIXTH CAUSES OF ACTION

(Liability of the Defendants Departments of the United States Government for Actual Damages Relative To Terminal Medical and Funeral Expenses of Deceased Victims)

181. The foregoing allegations are reproduced and repleaded herein by reference.

182. The deceased victims of exposure to high levels of toxic chemicals in Clark Field did not die quick deaths. Most, if not all of them, received extended and costly medical support as well as prolonged hospitalization up to the time of their deaths.

183. On the other hand, funeral and related expenses were likewise incurred by the grieving Plaintiffs.

184. Due to their indigency, most of the Plaintiffs had to borrow from relatively wealthier friends and relatives for the aforesaid purposes.

185. To date, the total amount of ONE MILLION EIGHT HUNDRED THOUSAND PESOS (PhP1,800,000.00) had been incurred as actual medical, funeral and related expenses for the deceased victims of toxic chemical exposure at Clark Field.

186. In light of the foregoing, the Departments of Defense and Air Force of the United States of America should be held liable to the Plaintiffs in the total amount of ONE MILLION EIGHT HUNDRED THOUSAND PESOS (PhP1,800,000.00) as ACTUAL DAMAGES for the deceased victims.

THIRTY SEVENTH TO EIGHTY FIRST CAUSES OF ACTION

(Liability of the Defendants Departments of the Government of the United States for Actual Damages In Favor of Living But Ailing Victims)

187. The foregoing allegations are reproduced and repleaded herein by reference.

188. Apart from those who died, a greater number of former residents of the CABCOM area and its environs at Clark Field have fallen ill from exposure to high levels of toxic chemicals.

189. To date, Plaintiffs, mostly former residents of CABCOM and its environs are suffering, in varying degrees, from a myriad of illnesses directly attributable to exposure to high levels of toxic chemicals.

191. To date, the aforesaid Plaintiffs have incurred the actual amount of TWENTY TWO MILLION FIVE HUNDRED THOUSAND PESOS (PhP 22,500,000) for the above-stated purposes.

192. The Defendants Departments of Defense and Air Force of the United States of America should be held liable for the total amount of TWENTY TWO MILLION FIVE HUNDRED THOUSAND PESOS (PhP 22,500,000) as ACTUAL DAMAGES in favor of the living but ailing Plaintiffs-victims of exposure to high levels of toxic wastes in Clark Field.

EIGHTY SECOND TO NINETY NINTH CAUSES OF ACTION

(Liability of Defendants Departments of the

Philippine Government for Wrongful Deaths)

193. The foregoing paragraphs are repleaded by way of reference.

194. Defendants Department of Health and Department of the Environment and Natural Resources and their agencies failed to observe their duties, as specifically enjoined by the Philippine Constitution and other aforestated Philippine environmental laws, in safeguarding the environment even in the face of extensive military use by the United States. The said Departments of Government are likewise bound to ensure the rights of Filipinos to health and a balanced and healthful ecology.

(a) Conduct regular and thorough inspections of United States facilities at Clark Field to make sure that toxic and hazardous wastes are properly disposed of and to ensure that Philippine environmental laws are observed thereat.

(b) Ensure that no toxic and hazardous wastes were left at Clark Field before allowing the full evacuation or abandonment thereof by the United States Departments of Defense and Air Force.

(c) Conduct a baseline study of the groundwater, soil and air at the CABCOM area before allowing the use and settlement thereof by the Plaintiffs-evacuees of the Mount Pinatubo eruption. In this case, the National Disaster Coordinating Council, the Department of National Defense and the Mount Pinatubo Commission as well as the Office of the President of the Philippines are equally negligent.

(d) Conduct a thorough examination and/or study of the extent of toxic contamination in the former Clark Air Force Base after receiving notice of the existence thereof and the sudden rise in the number of victims of toxic waste contamination.

(f) Provide medical, financial and other forms of assistance to the victims despite widespread and repeated pleas therefor.

196. Furthermore, the Defendants Clark Development Corporation, the DENR, DOH and the Office of the President of the Philippines are likewise liable for taking part in a concerted effort to conceal, belittle and ignore the exact nature and extent of the toxic contamination at Clark field. Such offices are likewise liable for unduly exposing the Plaintiffs, as workers and residents in the area, to toxic waste contamination, by permitting ingress, egress and transitory stay for them at Clark Field.

197. At the time of the bases’ occupation by the U.S. Military, defendant Department of Health and its respective agencies and other organs failed to ensure that the U.S. Military had complied with Philippine requirements on waste disposal, National Water Drinking Standards and Sewage Collection and Disposal and other laws, rules and regulations affecting health standards.

198. At the time of the evacuation and relocation of the plaintiffs to CABCOM, defendant Department of Health failed to ensure that CABCOM and its environs were safe for human habitation; that the U.S. Military had complied with the appropriate health laws and regulations.

199. At the time of the occupation of the bases by the U.S. military, defendant Department of the Environment and Natural Resources and its respective agencies failed to enforce and ensure compliance by the former of Philippine laws and regulations on the environment.

200. The defendants Departments of the Philippine government’s failure to perform their duties under the Constitution and pertinent Philippine laws as aforementioned as well as their failure to enforce compliance of the same upon the U.S. Department of the Air Force was one of the principal causes of the illnesses and deaths of the Plaintiffs.

201. For which reason, said defendants should be held liable for the sum of NINE HUNDRED THOUSAND PESOS (PhP 900,000.00) as ACTUAL DAMAGES.

ONE HUNDREDTH TO ONE HUNDRED SEVENTEENTH

CAUSES OF ACTION

(Liability of the Defendants Departments of the Philippine Government for Actual Damages Relative To Terminal Medical and Funeral Expenses of Deceased Victims)

202. The foregoing allegations are reproduced and repleaded herein by reference.

203. The deceased victims of exposure to high levels of toxic chemicals in Clark Field did not die quick deaths. Most, if not all of them, received extended and costly medical support as well as prolonged hospitalization up to the time of their deaths.

204. On the other hand, funeral and related expenses were likewise incurred by the grieving Plaintiffs.

205. Due to their indigency, most of the Plaintiffs had to borrow from relatively wealthier friends and relatives for the aforesaid purposes.

206. To date, the total amount ONE MILLION EIGHT HUNDRED THOUSAND PESOS (PhP 1,800,000.00) had been incurred as actual medical, funeral and related expenses for the deceased victims of toxic chemical exposure at Clark Field.

207. In light of the foregoing, the Department of Health and the Department of the Environment and Natural Resources should be held liable to the Plaintiffs in the total amount of TWENTY TWO MILLION FIVE HUNDRED THOUSAND PESOS (PhP 22,500,000) as ACTUAL DAMAGES for the deceased victims.

ONE HUNDRED EIGHTEENTH TO ONE HUNDRED SIXTY SECOND

CAUSES OF ACTION

(Liability of the Defendants Departments of the Philippine Government for Actual Damages In Favor of Living But Ailing Victims)

208. The foregoing allegations are reproduced and repleaded herein by reference.

209. Apart from those who died, a larger number of former CABCOM residents and its environs at Clark Field have fallen ill due to exposure to high levels of toxic chemicals.

210. To date, Plaintiffs, mostly former residents of CABCOM and its environs are suffering, in varying degrees, from a myriad of illnesses directly attributable to exposure to high levels of toxic chemicals.

212. To date, the aforesaid Plaintiffs have incurred the actual amount of TWENTY TWO MILLION FIVE HUNDRED THOUSAND PESOS (PhP 22,500,000.00) for the above-stated purposes.

213. Defendants Department of Health and Department of the Environment and Natural Resources should be held liable for the total amount of TWENTY TWO MILLION FIVE HUNDRED THOUSAND PESOS (PhP 22,500,000.00) as ACTUAL DAMAGES in favor of the living but ailing Plaintiffs-victims of exposure to high levels of toxic wastes in Clark Field.

ONE HUNDRED SIXTY THIRD TO TWO HUNDRED TWENTY FIFTH

CAUSES OF ACTION

(Liability of Defendants Departments of the United States Government for Moral Damages)

214. The foregoing allegations are repleaded by way of reference.

215. The untimely deaths of their loved ones, the lingering and worsening diseases which they contracted and their uncertain health conditions, all of which were directly brought about by the wanton and reckless conduct of the defendants Departments of the United States government, have caused and continue to cause untold suffering, mental anguish, fright and anxiety to the Plaintiffs.

216. Furthermore, the presence of toxic contaminants in their respective communities has besmirched the Plaintiffs’ individual reputations and caused them social humiliation.

217. By reason of the foregoing, the defendants Departments of Defense and Air Force of the United States should be held liable to the Plaintiffs in the total amount of TWENTY FIVE BILLION DOLLARS (US $25 Billion) as Moral Damages.

TWO HUNDRED TWENTY SIXTH TO TWO HUNDRED EIGHTY EIGHTH CAUSES OF ACTION

(Liability of the Defendants Departments of the United States Government for Exemplary Damages)

218. The foregoing allegations are repleaded by reference.

219.As an example to the public good and to serve as deterrent against any foreign government agencies and instrumentalities similarly disposed to reckless conduct and to renege on their obligations to the community of nations relative to the preservation of the global environment and respect for the rights and domestic laws of host countries, the defendants Departments of Defense and Air Force of the United States should be made to pay the Plaintiffs the total sum of TWENTY FIVE BILLION DOLLARS (US$ 25 Billion) as Moral Damages.

220. The liability of the said defendants for exemplary damages in the foregoing amount likewise rests upon the fact that their reckless conduct has wrought depradation upon the Philippine environment at Clark field rendering the same useless and unfit for habitation for decades to come.

TWO HUNDRED EIGHTY NINTH TO THREE HUNDRED FIFTY FIRST

CAUSES OF ACTION

(Liability of the Defendants Departments of the Philippine Government for Moral Damages)

221. The foregoing allegations are repleaded herein by reference.

222. For the social humiliation, mental anguish, anxiety and physical suffering which the Plaintiffs individually suffered when the defendants departments of their own Philippine government showed apathy and disregarded, as they continue to disregard and belittle their plight and pleas for medical support and financial assistance, the defendants Departments of the Philippine government should be held liable to the Plaintiffs in the total sum of TWELVE BILLION FIVE HUNDRED MILLION PESOS (PhP 12,500,000,000) as Moral damages.

223. The foregoing claim for an award for Moral damages against the aforesaid Defendants is likewise founded upon the reckless disregard of the said instrumentalities of government for the health and welfare of the Plaintiffs when they allowed them to relocate in an area where no previous testing against health and other hazards was conducted.

THREE HUNDRED FIFTY SECOND TO FOUR HUNDRED FOURTEENTH CAUSES OF ACTION

(Liability of the Defendants Departments of the Philippine Government for Exemplary Damages)

224. The foregoing allegations are repleaded by reference.

225. Similarly, as an example for the public good and to discourage inaction and apathy on the part of the branches, agencies and intrumentalities of the Philippine government to the plight and welfare of the dying and ailing members of society as well as to encourage the said offices to act proactively, in preserving and guaranteeing the right of the people to health and to a healthy environment, the defendants Departments of the Philippine government should be held liable to the Plaintiffs in the total sum of TWELVE BILLION FIVE HUNDRED MILLION PESOS (PhP 12,500,000,000) as Exemplary Damages.

THREE HUNDRED FIFTEENTH CAUSE OF ACTION

(Obligation of the Defendants Departments of the United States Government To Conduct A Clean-Up Of Clark Field and its Environs)

226. The foregoing allegations are repleaded by reference.

227. For the duration of their stay in Philippine territory, the Defendants Departments of Defense and Air Force of the United States government were under an obligation to abide by the laws of the Republic of the Philippines relative to the protection of the Philippine environment.

228. Said defendants likewise have a similar obligation to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction in accordance with the pronouncement of the International Tribunal in the Trail Smelter Case(United States v. Canada, 3 R.I.A.A. 1907 [1941]). and the decision of the International Court of Justice in the Corfu Channel case (UK v. Albania, 1949 I.C.J.). The same international legal principle is now enshrined in Principle 2 of the United Nations Convention In The Rio Convention On Environment and Development (June 1992).

229. The presence of high-levels of concentration of toxic chemicals in and around Clark Field, in places clearly not identified as dumpsites, patently manifest the willful disregard of Philippine and international environmental laws by the Departments of Defense and Air Force of the United States of America.

230. It is beyond cavil that a State has responsibility for an act or omission which results in a breach of a legal obligation founded upon a treaty, custom or other such unilateral acts (Ian Brownlie, Principles of Public International Law [ Fifth Ed., 1988, Oxford University Press, Inc., New York]) p. 435.).

231. Necessarily, any State which violates a legal obligation under international law is under an equal obligation to make reparation.

232. In a report on the Spanish Zone of Morocco Claims (Translation; French text, RIAA ii. 615 at 641), Judge Huber said:

“Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparation.”

“It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefor is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.”

234. Focusing further on the issue of reparation, the Permanent Court of Justice declared:

“the essential principle contained in the actual notion of an illegal act…is that the reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or if it is not possible, payment of a sum corresponding to the values which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law (Certain German Interests In Upper Silesia (F.R.G. v. Poland), 1928 P.C.I.J. (Ser. A) No. 17, p. 377).”

235. Lastly, in the Caire claim(1929) RIAA v. 516 at 529-31), Verzijl, the President of the Franco-Mexican Claims Commission stated thus:

“The State also bears an international responsibility for all acts committed by its officials or its organs which are delictual according to international law, regardless of whether the official organ has acted within the limits of his competency or has exceeded those limits…”

236. Where the responsibility of a state is established, an obligation to make reparation arises. The injured state may require the other to:

(a) Discontinue the act;

(b) Apply national legal remedies;

(c) Re-establish the situation existing before the act in question, or to the extent that this is impossible, pay corresponding compensation; and

(d) Provide guarantees against repetition.

237. In light of the foregoing, the defendants Departments of the United States government should be directed to conduct a clean-up of their former military base area at Clark Field. Should they fail to do so, the Defendants should be made to pay the fixed sum of FIFTY BILLION DOLLARS (US$ 50 Billion) as compensation for depriving the Plaintiffs, and other Filipinos, the economic use of Clark Field and its environs.

ALLEGATIONS IN SUPPORT OF

THE PRAYER FOR THE ISSUANCE OF

A WRIT OF PRELIMINARY MANDATORY INJUNCTION

238. In cases of extreme urgency, where petitioner’s right to the writ is clear; where considerations of relative inconvenience are strongly in his favor; where there appears to be a willful invasion of petitioner’s rights the injury inflicted upon him being a continuing one; and where the effect of the mandatory injunction would not be to create a new relation between the parties but solely to re-establish a pre-existing relation between them recently and arbitrarily interrupted by the respondent, the Courts should not hesitate in granting the writ of preliminary mandatory injunction (Lemma vs. Valencia, 7 SCRA 469).

239. Concededly, a mandatory injunction is an extreme remedy and will be granted only on a showing that (a) the invasion of the right is material and substantial, (b) the right of the complainant is clear and unmistakable, and (c) there is an urgent and paramount necessity for the writ to prevent serious damages (Batiste, et. al., vs. Barcelona, et. al., 100 Phil. 1078), and that a new relation between the parties will not be created (Alvaro, et. al., vs. Zapata, et. al., GR No. 50548, Nov. 25, 1982).

240. In the instant case, it is respectfully submitted that the issuance of a writ of preliminary mandatory injuction is imperative.

241. Specifically, the Plaintiffs respectfully pray for the issuance of a writ of preliminary mandatory injunction directing the defendants Departments of the Philippine Government to perform the following:

(a) Immediately conduct new baseline study of Clark Field to determine the present extent of toxic contamination thereat as well as the current cost of arresting and cleaning the same.

(c) To officially declare Clark Field as not suitable for human habitation and cause the immediate resettlement of persons still staying or living in the area as well as those in residing in resettlement areas where toxic contamination has spread or infiltrated.

(d) Compel the Philippine Government to seek immediate reparation from the United states government for the toxic waste contamination at Clark Field.

(e) Immediately conduct a clean-up of Clark Field to rid it of toxic chemicals as well as to arrest the further spread, infiltration or leaching thereof.

242. It has been sufficiently established that the former base areas where the plaintiffs, their heirs and other relatives as well as their friends and acquaintances, were first re-located at the onslaught of the eruption of Mount Pinatubo, are not suitable for human habitation considering the extensive amount of toxic materials found therat.

243. Despite the patent damage to human lives so far inflicted by such toxic chemicals in the area, the place continues to pose as a threat to the health of unsuspecting and trusting citizens who are bent upon settling or transiting the area.

244. It is thus imperative for the government, in order to safeguard the lives of its people, to immediately declare that Clark Field be officially declared as no longer suitable for human habitation. This Declaration must remain in full force and effect until such time as the government had managed to clean and clear these areas from any contaminants that may prove to be harmful to humans.

245. There is a clear constitutional duty on the part of the government to undertake the foregoing task under Sections 15 and 16 of Article II of the Constitution, to wit:

“Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them”; and,

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”

246. There is likewise an urgent need for the government to Immediately conduct new baseline study of Clark Field to determine the present extent of toxic contamination thereat as well as the current cost of arresting and cleaning the same. Such is dictated by the fact that for a long period of time, there has been no serious, concerted and full-blown official effort to determine the exact extent, nature and progress of toxic contamination at Clark Field. Without such a baseline study, no effective measures to arrest the spread as well as to cause the cleaning of the area could be undertaken.

247. Again, the duty of the Philippine government to undertake the foregoing, as well as the right of the citizens to demand such an action, is enshrined under Article II, Sections 15 and 16 of the Philippine Constitution.

248. Furthermore, the Philippine government, through the Department of Social Welfare and Development, is also tasked to “arrest the further deterioration of the socially disabling or dehumanizing conditions of the disadvantaged segment of the population at the community level” (Sec 2(a), Title XVI of the Administrative Code).

249. As the sovereign protector of the people, the government, has the duty of safeguarding and protecting its citizens’ lives and health. This means that the government should not unnecessarily expose its citizens to any harm. While it may be true that the government really meant well in resettling thousands of residents to the different Settlement Areas in order to take them away form the ravages of Mt. Pinatubo, still, this does not change the fact that these people had been exposed to different levels of toxins and poisons which had killed some of them and which are still destroying the health of others. It is now too late to salvage the lives of those who had passed away, but there is still some glimmer of hope for those who had been left behind. However, the clock is still ticking for these people and there is the urgency for the government to act immediately in order to be able to save those whose health are already slowly failing. These people need the assistance of the government which had exposed them to these illnesses in the first place. This is pursuant to the government’s mandated constitutional duty to protect the right to health of the people (Sec. 15, Art. II) and to protect and advance the right of the people to a balanced and healthful ecology (Sec.. 16, Art. II).

250. Under Sec. 1 of Chap. 1, Title IX of the Administrative Code (Health), it is the declared policy of the State that it shall protect and promote the right to health of the people and instill health consciousness among them; adopt an integrated and comprehensive approach to health development, with priority for the underprivileged sick, elderly, disabled, women, and children; endeavor to make essential goods, health and other social services available to all the people at affordable cost; establish and maintain an effective food and drug regulatory system; and undertake appropriate health manpower development and research, responsive to the country’s health needs and problems.

251. For this undertaking, the Department of Health (DOH) was created and organized in order to carry out its mandate under Sec. 2 of Title IX of the Administrative Code. The said Section states that the Department shall be primarily responsible for the formulation, planning, implementation, and coordination of policies and programs in the field of health. The primary function of the Department is the promotion, protection, preservation or restoration of the health of the people through the provision and delivery of health services and through the regulation and encouragement of providers of health goods and services.

252. It is clear that there is a right on the part of the people to expect that the government will provide them with the needed medical assistance and services in order to protect and preserve their health, and in case where such health had already been impaired, to provide for the means to nourish and restore them to their once healthy selves.

253. The failure on the part of the government and the DOH to carry out their mandated duty under the aforecited provisions makes them liable. Said failure to comply with their mandated duties under the laws of the Philippines also serves as fertile ground for the court to base any mandatory and/or prohibitive writs which it may decide to issue.

254. The government is clearly duty bound to insure that proper medical attention is provided to the victims of the toxins left behind by the American Bases. They should be able to enjoy, at the government’s expense, the best medical care which would ensure that their former health will be restored. Medical experts should be sent to the affected areas with the most modern medical and technical equipment so that a thorough and more insightful medical examination of the residents of Clark and Subic may be conducted with the aim of curing those who have already succumbed to the deathly embrace of the toxins and contaminants from the former US Bases. Free medicines should likewise be provided for these people.

255. The former US Bases areas are now unsuited for any form of human settlement because of the tremendous amount of toxins and contaminants dumped by the former possessors into its nearby waters, lands and air.

256. The duty of the government to insure that itcs citizens are enjoining a safe and clean environment is well established not only in the Constitution but also in existing statutes.

257. As stated in the case of Oposa vs. Factoran (224 SCRA 792), the rights of the people to a sound environment may be based on Articles 19, 20 and 21 of the civil code (Human Relations), Sec. 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Art. II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man’s inalienable right to self-preservation and self-perpetuation embodied in natural law. Added to this, there is likewise the correlative duty on the part of the government, particularly its Department of Environment and Natural Resources (DENR), to safeguard the people’s right to a healthful environment (Sec. 4, EO 192).

258. It is submitted that this duty on the part of the DENR compels it to take heed of the demands of the people in Clark and Subic to adopt measures and take decisive steps in cleaning up the mess left behind by the United States in its former facilities.

259. The Philippine Government, as the duly constituted representative of the Filipino people who had been harmed by the deliberate and tortuous acts of the United States Government, has the duty to take the cudgels for its citizens in appearing before duly constituted international tribunals in order to compel the US Government to face up to its responsibility for the harm it caused to the Philippine environment and to her people. This is one of the duty of the government since, it cannot, on its own, face up to the tremendous damage which had been caused. It is an accepted fact that the US Government was the one which operated the US Bases, and as such is the one primarily and directly responsible for the wastes which emanated from her bases.

260. Under International Law, it only the State which can represent persons and air their grievances against another State before international tribunals. It is thus imperative for the Philippine government as the duly constituted government of the Philippine State to take the cudgels for and in behalf of the Filipino People and to file the appropriate claims and charges against the US government for their unlawful and illegal acts of dumping toxic wastes in the surrounding area of their Bases which, in turn, caused damages and harm to the environment and to the people living within these areas.

261. In this regard, it is the clear duty of the Philippines, through the Department of Foreign Affairs (DFA), to act immediately in making the US Government liable for the damages which it caused to the Philippine environment and to the thousands of Filipinos now suffering from deaths and illnesses of epidemic proportions.

262. It is the mandated duty of the DFA, as stated in Title I of the Administrative Code, to represent the country in the conduct of its foreign relations.

263. Taking all these into consideration, one can see that there is a clear ground for an action to compel the Philippine government to act in consonance with the aforementioned matters. The urgency had been shown. The rights of the plaintiffs had been established and the duty of the Philippine government had been proved. It is now up for this Honorable Court to perform its mandated judicial duty and compel the government through its respective agencies and departments to act accordingly.

264. The question now is whether the courts have the power to compel the government to act through the issuance of a preliminary mandatory injunction. There had been cases where this question had been answered in the affirmative. One such case is the case of Collector of Internal Revenue vs. Reyes and Court of Appeals (100 Phil. 822).

265. In the said case, the Supreme Court held that a writ of injunction may issue restraining the Collector of Internal Revenue from proceeding with the collection, levy, distraint and/or sale of the taxpayer’s property. In still another case, the Court explained that while courts cannot compel an agency to do a particular act or to enjoin such act within it prerogative, there is an exception to this, which is, when the said agency acted in grave abuse of discretion or in excess of its jurisdiction ( Republic vs. Silerio, 272 SCRA 280). This doctrine easily implies that courts can take cognizance of injunction cases against government agencies especially when these agencies are acting with grave abuse of discretion. Still, another case in point is the case of Manila Prince Hotel vs. GSIS (267 SCRA 408) where the court granted the petitioners’ prayer for prohibition and mandamus against the GSIS, a government controlled corporation.

266. The power to issue writs against the government and its agencies for their unlawful acts falls within the general power of judicial review. The Constitution defines Judicial Power as including “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government” (2nd par., Sec. 1, Art. VIII).

267. Encompassed within this power is the concomitant authority to restrain any act committed beyond the constitutional and statutory powers of a particular governmental agency, which is clearly in exercise of an abuse of discretion and for that matter, to compel the doing of an act in order to make sure that the government is performing its duties in protecting and safeguarding the people and the national heritage and territory of the country.

268. In light of the foregoing, it is respectfully prayed that the writ of Preliminary Injunction prayed, in connection with the foregoing purposes, be immediately issued by the Honorable Court.

(c) To officially declare Clark Field as not suitable for human habitation and cause the immediate resettlement of persons still staying or living in the area as well as those in residing in resettlement areas where toxic contamination has spread or infiltrated.

(d) Compel the Philippine Government to seek immediate reparation from the United states government for the toxic waste contamination at Clark Field.

(e) Immediately conduct a clean-up of Clark Field to rid it of toxic chemicals as well as to arrest the further spread, infiltration or leaching thereof.

2. Judgment be rendered directing the defendants Department of Defenses and Department of the Air Force of the Government of the United States of America to pay the Plaintiffs the following:

(a) The sum of TWENTY FIVE MILLION TWO HUNDRED THOUSAND DOLLARS (US$ 25,200,000.00) in ACTUAL DAMAGES;

(b) The sum of TWENTY FIVE BILLION DOLLARS (US$ 25,000,000,000.00) in MORAL DAMAGES; and

(c) The sum of TWENTY FIVE BILLION DOLLARS (US$ 25,000,000,000.00) in EXEMPLARY DAMAGES.

3. Judgment be rendered directing the Defendants Departments of the Philippine Government to pay the Plaintiffs the following:

(a) The sum of TWENTY FIVE MILLION TWO HUNDRED THOUSAND PESOS (PhP 25,200,000.00) in ACTUAL DAMAGES;

(b) The sum of TWELVE BILLION FIVE HUNDRED MILLION PESOS (PhP 12,500,000,000.00) in MORAL DAMAGES; and

(c) The sum of TWELVE BILLION FIVE HUNDRED MILLION PESOS (PhP 12,500,000,000.00) in EXEMPLARY DAMAGES.

4. The Defendants Departments of the United States Government be directed to conduct a comprehensive clean-up of Clark Field to rid it of toxic and other hazardous wastes as well as to arrest the further spread, infiltration or leaching thereof to surrounding areas and bodies of water.

Other remedies just and equitable are likewise prayed for.

18 August 2000, Pasig City for Angeles, Pampanga.

PEÑA SANCHEZ LACSON

& MISON

Counsel for the Complainants

Suite 213, Parc Chateau Bdlg.

Onyx cor. Garnet Streets,

Ortigas Centre, Pasig City

By:

ALEXANDER L. LACSON

PTR No. 0233054, 02/11/00, Negros Occ.

IBP No. 503367, 02/1/00, Negros Occ.

SIEGFRED B. MISON

PTR No. 1304367, 02/18/00, Quezon City

IBP No. 503368, 02/07/00, Quezon City

STEPHEN V. JAROMAY

PTR No. 1304368, 02/18/00, Quezon City

IBP No. 503366, 02/07/00, Manila City

DENNIS B. N. ACORDA

PTR No. 148932, 02/17/00, Manila City

IBP No. 503365, 02/07/00, Cagayan City

FERDINAND C. BAYLON

PTR No. 355397, 03/06/00, Quezon City

IBP No. 494672, 01/07/00, Quezon City

[1] 1. The Camachili Resettlement Center (Phases I & II) was completed in 1994. Around Three Thousand (3,000) families temporarily housed at CABCOM were eventually relocated in Camachili from 1994 to 1995.

2. The Maryland Resettlement Center was likewise finished in 1994. Around One Thousand (1,000) families temporarily housed at CABCOM were eventually relocated in Maryland from 1994 to 1995.

3. The Mauaqui Resettlement Center was completed in 1994. Around Three Thousand Five (3,500) families temporarily housed at CABCOM were eventually relocated in Mauaqui from 1994 and 1995.

4. The Madapdap Resettlement Center was eventually completed in 1995. Around Seven Thousand Two Hundred Eighty (7,280) families temporarily housed at CABCOM were eventually relocated there from 1995 to 1996.

5. The Sta. Lucia Resettlement Center was finished in 1997. Around Four Thousand (4,000) families from CABCOM were eventually relocated there in 1997 and 1998.

6. The Pandacaqui Resettlement Center (NHA project) was completed in 1999. Around One Thousand Two Hundred (1,200) families temporarily housed at CABCOM were eventually relocated in Pandacaqui in 1999.

[2]Environmental and Health Impact Report on Known and Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines by Paul Bloom, Ph.D., Jorge Emmanuel, Ph.D., Alex Carlos, M.S., and Theodore Schettler, M.D. (August 1994) (“Environmental and Health Impact Report”); Environmental Review of the Drawdown Activities at Clark Air Base, Republic of the Philippines, by Col. John J. Allen (September 1991); Weston International Environmental Baseline Study and Soil and Water Baseline Study, AsiaStar Western International (September 1997); Water Contamination: Clark Air Force Base Command, Pampanga, a report submitted by Director Renante A. Basas, M.D. of the Forensic Office of the Commission on Human Rights (April 21, 1999); other studies conducted by the Department of Health and the Department of Environment and Natural Resources as cited in Senate Committee Report No. 237 submitted by the Committees on Environment and Natural Resources, Health and Demography, and Foreign Relations on 16 May 2000.

[3] Analytes indicated herein were detected and found to exceed PNS/WHO but below US EPA standards.

[4] Analytes indicated herein were detected and found to exceed PNS/WHO but below US EPA standards.

[5] Discussion of the contaminants and their known or suspected effects on human health were quoted, summarized or paraphrased from the Environmental and Health Impact Report as well as the Forensic report submitted to the Commission on Human Rights.

The date posted here is due to our website rebuild, it does not reflect the original date this article was posted. This article was originally posted in Yonip in 2002